THIRD DIVISION

January 25, 2016

G.R. No. 205472

AMADO I. SARAUM,1 Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This petition for review on certiorari under Rule 45 of the Rules of

Court (Rules) seeks to reverse the Decision2 dated September 8, 2011
and Resolution3 elated December 19, 2012 of the Court of
Appeals (CA) in CAG. R. CEB CR No. 01199, which affirmed the
judgment of conviction against petitioner Amado I.
Saraum (Saraum) rendered by the Regional Trial Court (RTC), Branch
57, Cebu City, in Criminal Case No. CBU-77737.

Saraum was charged with violation of Section 12, Article

II (Possession of Paraphernalia for Dangerous Drugs) of Republic
Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of
2002. The accusatory portion of the Information reads:

That on or about the 17th day of August, 2006, at about 12:45 A.M., in
the City of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the said accused, with deliberate intent, and without
being authorized by law, did then and there have in his possession the
following:

1 = One (1) lighter

 2 = One (1) rolled tissue paper

3 = One (1) aluminum tin foil

which are instruments and/or equipments (sic) fit or intended for

smoking, consuming, administering, ingesting, or introducing any
dangerous drug into the body.

CONTRARY TO LAW.4

In his arraignment, Saraum, with the assistance of a counsel, pleaded

not guilty to the offense charged.5 Trial ensued. Meantime, Saraum
was released on bail.6

PO3 Jeffrey Larrobis and PO1 Romeo Jumalon testified for the
prosecution while the defense presented no witness other than
Saraum.

According to the prosecution, on August 17, 2006, a telephone call was

received by PO3 Larrobis regarding the illegal drug activities in Sitio
Camansi, Barangay Lorega, Cebu City. A buy-bust team was then
formed composed of PO3 Larrobis, PO1 Jumalon, PO2 Nathaniel Sta.
Ana, PO1 Roy Cabahug, and PO1 Julius Aniñon against a certain "Pata."
PO2 Sta. Ana was designated as the poseur-buyer accompanied by the
informant, PO1 Jumalon as the back-up of PO2 Sta. Ana, and the rest of
the team as the perimeter security. PO1 Aniñon coordinated with the
Philippine Drug Enforcement Agency (PDEA) regarding the operation.
After preparing all the necessary documents, such as the pre-
operation report and submitting the same to the PDEA, the team
proceeded to the subject area.

During the operation, "Pata" eluded arrest as he tried to run towards

his shanty. Inside the house, which was divided with a curtain as
partition, the buy-bust team also saw Saraum and Peter Esperanza,
who were holding drug paraphernalia apparently in preparation to
have a "shabu" pot session. They recovered from Saraum’s possession
a lighter, rolled tissue paper, and aluminum tin foil (tooter). PO3
Larrobis confiscated the items, placed them in the plastic pack of
misua wrapper, and made initial markings ("A" for Saraum and "P"
for Esperanza). At the police station, PO3 Larrobis marked as "AIS-08-
17-2006" the paraphernalia recovered from Saraum. After the case
was filed, the subject items were turned over to the property
custodian of the Office of City Prosecutor.
By way of defense, Saraum denied the commission of the alleged
offense. He testified that on the date and time in question, he was
passing by Lorega Cemetery on his way to the house of his parents-in-
law when he was held by men with firearms. They were already with
"Antik" and "Pata," both of whom were his neighbors. Believing that
he had not committed anything illegal, he resisted the arrest. He
learned of the criminal charge only when he was brought to the court.

On May 5, 2009, the RTC rendered its Decision,7 the dispositive

portion of which states:

WHEREFORE, the Court finds the accused guilty beyond reasonable

doubt of the crime of violation of Section 12, Article II of R.A. 9165 and
he is hereby sentenced to suffer the penalty of six (6) months and one
(1) day to two (2) years and to pay a fine of Php20,000.00 with
subsidiary imprisonment in case of insolvency.

The drug paraphernalias (sic) are ordered forfeited in favor of the

government.

SO ORDERED.8

On appeal, the CA sustained the judgment of conviction; hence, this

petition.

We deny.

Considering that Saraum failed to show any arbitrariness, palpable

error, or capriciousness on the findings of fact of the trial and
appellate courts, such findings deserve great weight and are
deemed conclusive and binding.9 Besides, a review of the records
reveals that the CA did not err in affirming his conviction.

The elements of illegal possession of equipment, instrument,

apparatus and other paraphernalia for dangerous drugs under Section
12, Article II of R.A. No. 9165 are: (1) possession or control by the
accused of any equipment, apparatus or other paraphernalia fit or
intended for smoking, consuming, administering, injecting, ingesting,
or introducing any dangerous drug into the body; and (2) such
possession is not authorized by law.10 In this case, the prosecution has
convincingly established that Saraum was in possession of drug
paraphernalia, particularly aluminum tin foil, rolled tissue paper, and
lighter, all of which were offered and admitted in evidence.
Saraum was arrested during the commission of a crime, which
instance does not require a warrant in accordance with Section 5 (a),
Rule 113 of the Revised Rules on Criminal Procedure.11 In arrest in
flagrante delicto, the accused is apprehended at the very moment
he is committing or attempting to commit or has just committed
an offense in the presence of the arresting officer. To constitute a
valid in flagrante delicto arrest, two requisites must concur: (1) the
person to be arrested must execute an overt act indicating that he has
just committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence or within the
view of the arresting officer.12

Here, the Court is unconvinced with Saraum’s statement that he was

not committing a crime at the time of his arrest. PO3 Larrobis
described in detail how they were able to apprehend him, who was
then holding a disposable lighter in his right hand and a tin foil and a
rolled tissue paper in his left hand,13 while they were in the course of
arresting somebody. The case is clearly one of hot pursuit of "Pata,"
who, in eluding arrest, entered the shanty where Saraum and
Esperanza were incidentally caught in possession of the illegal
items. Saraum did not proffer any satisfactory explanation with
regard to his presence at the vicinity of the buy-bust operation and his
possession of the seized items that he claims to have "countless,
lawful uses." On the contrary, the prosecution witnesses have
adequately explained the respective uses of the items to prove that
they were indeed drug paraphernalia.14 There is, thus, no necessity
to make a laboratory examination and finding as to the presence
or absence of methamphetamine hydrochloride or any illegal
substances on said items since possession itself is the punishable
act.

The valid warrantless arrest gave the officers the right to search the
shanty for objects relating to the crime and seize the drug
paraphernalia they found.1âwphi1 In the course of their lawful
intrusion, they inadvertently saw the various drug paraphernalia. As
these items were plainly visible, the police officers were justified in
seizing them. Considering that Saraum’s arrest was legal, the search
and seizure that resulted from it were likewise lawful. The various
drug paraphernalia that the police officers found and seized in the
shanty are, therefore, admissible in evidence for having proceeded
from a valid search and seizure. Since the confiscated drug
paraphernalia are the very corpus delicti of the crime charged, the
Court has no choice but to sustain the judgment of conviction.
Even if We consider the arrest as invalid, Saraum is deemed to
have waived any objection thereto when he did not raise the issue
before entering his plea. "The established rule is that an accused
may be estopped from assailing the legality of his arrest if he failed to
move for the quashing of the Information against him before his
arraignment. Any objection involving the arrest or the procedure in
the court's acquisition of jurisdiction over the person of an accused
must be made before he enters his plea; otherwise the objection is
deemed waived."15 In this case, counsel for Saraum manifested its
objection to the admission of the seized drug paraphernalia, invoking
illegal arrest and search, only during the formal offer of evidence by
the prosecution.16

In ascertaining the identity of the illegal drugs and/or drug

paraphernalia presented in court as the ones actually seized from the
accused, the prosecution must show that: (a) the prescribed procedure
under Section 21(1), Article II of R.A. No. 9165 has been complied with
or falls within the saving clause provided in Section 21(a), Article II of
the Implementing Rules and Regulations (IRR) of R.A. No.
9165;17 and (b) there was an unbroken link (not perfect link) in the
chain of custody with respect to the confiscated items.18

Although Section 21(1) of R.A. No. 9165 mandates that the

apprehending team must immediately conduct a physical inventory of
the seized items and photograph them, non-compliance therewith is
not fatal as long as there is a justifiable ground and as long as the
integrity and the evidentiary value of the confiscated/seized items
are properly preserved by the apprehending team.19 While nowhere
in the prosecution evidence show the "justifiable ground" which may
excuse the police operatives involved in the buy-bust operation from
making the physical inventory and taking a photograph of the drug
paraphernalia confiscated and/or seized, such omission shall not
render Saraum's arrest illegal or the items seized/confiscated from
him as inadmissible in evidence. Said "justifiable ground" will remain
unknown in the light of the apparent failure of Saraum to specifically
challenge the custody and safekeeping or the issue of disposition and
preservation of the subject drug paraphernalia before the trial court.
He cannot be allowed too late in the day to question the police
officers' alleged non-compliance with Section 21 for the first time
on appeal.20

The chain of custody rule requires the identification of the persons

who handled the confiscated items for the purpose of duly monitoring
the authorized movements of the illegal drugs and/or drug
paraphernalia from the time they were seized from the accused until
the time they are presented in court.21 Section 1(b) of Dangerous
Drugs Board Regulation No. 1, Series of 2002, implementing R.A. No.
9165, defines chain of custody as follows:

Chain of Custody means the duly recorded authorized movements and

custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time
of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized
item, the date and time when such transfer of custody were made in
the course of safekeeping and use in court as evidence, and the final
disposition.

In Mallillin v. People,22 the Court discussed how the chain of custody of

seized items should be established, thus:

As a method of authenticating evidence, the chain of custody rule

requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link
in the chain, from the moment the item was picked up to the time it is
offered into evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness’
possession, the condition in which it was received and the condition in
which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.23

While the procedure on the chain of custody should be perfect and

unbroken, in reality, it is almost always impossible to obtain an
unbroken chain.24 Thus, failure to strictly comply with Section 21(1),
Article II of R.A. No. 9165 does not necessarily render an accused
person's arrest illegal or the items seized or confiscated from him
inadmissible.25

x x x Under Section 3 of Rule 128 of the Rules of Court, evidence is

admissible when it is relevant to the issue and is not excluded by the
law or these rules. For evidence to be inadmissible, there should be a
law or rule which forbids its reception. If there is no such law or rule,
the evidence must be admitted subject only to the evidentiary weight
that will be accorded it by the courts. x x x

We do not find any provision or statement in said law or in any rule

that will bring about the non-admissibility of the confiscated and/or
seized drugs due to non-compliance with Section 21 of Republic Act
No. 9165. The issue therefore, if there is non-compliance with said
section, is not of admissibility, but of weight - evidentiary merit or
probative value - to be given the evidence. The weight to be given by
the courts on said evidence depends on the circumstances obtaining in
each case.26

The most important factor is the preservation of the integrity and

evidentiary value of the seized items.27 In this case, the prosecution
was able to demonstrate that the integrity and evidentiary value of
the confiscated drug paraphernalia had not been compromised
because it established the crucial link in the chain of custody of the
seized items from the time they were first discovered until they were
brought to the court for examination. Even though the prosecution
failed to submit in evidence the physical inventory and photograph of
the drug paraphernalia, this will not render Saraum's arrest illegal or
the items seized from him inadmissible. There is substantial
compliance by the police as to the required procedure on the
custody and control of the confiscated items. The succession of
events established by evidence and the overall handling of the seized
items by specified individuals all show that the evidence seized were
the same evidence subsequently identified and testified to in open
court.

Certainly, the testimonies of the police officers who conducted the

buy-bust operation are generally accorded full faith and credit in view
of the presumption of regularity in the performance of official duties
and especially so in the absence of ill-motive that could be attributed
to them.28 The defense failed to show any odious intent on the part of
the police officers to impute such a serious crime that would put in
jeopardy the life and liberty of an innocent person.29 Saraum’s mere
denial cannot prevail over the positive and categorical
identification and declarations of The
the police officers.
defense of denial, frame-up or extortion,
like alibi, has been invariably viewed by the
courts with disfavor for it can easily be concocted
and is a common and standard defense ploy in
most cases involving violation of the Dangerous
Drugs Act.30 As evidence that is both negative and self-serving,
this defense cannot attain more credibility than the testimonies of
prosecution witnesses who testify clearly, providing thereby positive
evidence on the various aspects of the crime committed. 31 To merit
consideration, it has to be substantiated by strong, clear and
convincing evidence, which Saraum failed to do for presenting no
corroborative evidence.32

Settled is the rule that, unless some facts or circumstances of weight

and influence have been overlooked or the significance of which has
been misinterpreted, the findings and conclusion of the trial court on
the credibility of witnesses are entitled to great respect and will not
be disturbed because it has the advantage of hearing the witnesses
and observing their deportment and manner of testifying. 33 The rule
finds an even more stringent application where said findings are
sustained by the CA as in this case.34 In this case, the quantum of
evidence necessary to prove Saraum 's guilt beyond reasonable doubt
had been sufficiently met since the prosecution stood on its own
strength and did not rely on the weakness of the defense. 'The
prosecution was able to overcome the constitutional right of the
accused to be presumed innocent until proven guilty.

WHEREFORE, premises considered, the petition is DENIED. The

Decision elated September 8, 2011 and Resolution dated December 19,
2012 of the Court of Appeals in CA-G.R. CEB CR No. 01199, which
sustained the judgment of conviction rendered by the Regional Trial
Court, Branch 57, Cebu City, in Criminal Case No. CBU-77737,
is AFFIRMED.

SO ORDERED.

FIRST DIVISION
 G.R. No. 205926, July 22, 2015

ALVIN COMERCIANTE Y GONZALES, Petitioner, v. PEOPLE OF THE

PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the

Decision2 dated October 20, 2011 and the Resolution3 dated February
19, 2013 of the Court of Appeals (CA) in CA-G.R. CR No. 32813, which
affirmed in toto the Judgment4 dated July 28, 2009 of the Regional
Trial Court of Mandaluyong City, Branch 213 (RTC) in Crim. Case No.
MC-03-7242-D convicting petitioner Alvin Comerciante y Gonzales
(Comerciante) of the crime of illegal Possession of Dangerous Drugs
defined and penalized under Section 11, Article II of Republic Act No.
(RA) 9165,5 otherwise known as the Comprehensive Dangerous Drugs
Act of 2002.

The Facts

On July 31, 2003, an Information was filed before the RTC charging
Comerciante of violation of Section 11, Article II of RA 9165, to wit:

That on or about the 30th day of July 2003, in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court,
the above-named accused, not having been lawfully authorized to
possess any dangerous drugs, did then and there willfully, unlawfully
and feloniously and knowingly have in his possession, custody and
control Two (2) heat-sealed transparent plastic sachet (sic) each
containing 0.15 gram (sic) and 0.28 gram (sic) of white crystalline
substance with a total of 0.43 grams which was found positive to the
test for Methamphetamine Hydrochloride commonly known as
"shabu", a dangerous drug.

CONTRARY TO LAW.6
According to the prosecution, at around 10 o'clock in the evening of
July 30, 2003, Agent Eduardo Radan (Agent Radan) of the NARCOTICS
group and PO3 Bienvy Calag II (PO3 Calag) were aboard a motorcycle,
patrolling the area while on their way to visit a friend at Private Road,
Barangay Hulo, Mandaluyong City. Cruising at a speed of 30
kilometers per hour along Private Road, they spotted, at a distance of
about 10 meters, two (2) men - later identified as Comerciante and a
certain Erick Dasilla7 (Dasilla) - standing and showing "improper and
unpleasant movements," with one of them handing plastic sachets to
the other. Thinking that the sachets may contain shabu, they
immediately stopped and approached Comerciante and Dasilla. At a
distance of around five (5) meters, PO3 Calag introduced himself as a
police officer, arrested Comerciante and Dasilla, and confiscated two
(2) plastic sachets containing white crystalline substance from them.
A laboratory examination later confirmed that said sachets contained
methamphetamine hydrochloride or shabu.8redarclaw

After the prosecution rested its case, Dasilla filed a demurrer to

evidence, which was granted by the RTC, thus his acquittal. However,
due to Comerciante's failure to file his own demurrer to evidence, the
RTC considered his right to do so waived and ordered him to present
his evidence.9redarclaw

In his defense, Comerciante averred that PO3 Calag was looking for a
certain "Barok", who was a notorious drug pusher in the area, when
suddenly, he and Dasilla, who were just standing in front of a jeepney
along Private Road, were arrested and taken to a police station. There,
the police officers claimed to have confiscated illegal drugs from them
and were asked money in exchange for their release. When they failed
to accede to the demand, they were brought to another police station
to undergo inquest proceedings, and thereafter, were charged with
illegal possession of dangerous drugs.10redarclaw

The RTC Ruling

In a Judgment11 dated July 28, 2009, the RTC found Comerciante guilty
beyond reasonable doubt of violation of Section 11, Article II of RA
9165, and accordingly, sentenced him to suffer the penalty of
imprisonment for twelve (12) years and one (1) day to twenty (20)
years, and ordered him to pay a fine in the amount of
P300,000.00.12redarclaw

The RTC found that PO3 Calag conducted a valid warrantless arrest on
Comerciante, which yielded two (2) plastic sachets containing shabu.
In this relation, the RTC opined that there was probable cause to
justify the warrantless arrest, considering that PO3 Calag saw, in
plain view, that Comerciante was carrying the said sachets when he
decided to approach and apprehend the latter. Further, the RTC found
that absent any proof of intent that PO3 Calag was impelled by any
malicious motive, he must be presumed to have properly performed
his duty when he arrested Comerciante.13redarclaw

Aggrieved, Comerciante appealed to the CA.

The CA Ruling

In a Decision14 dated October 20, 2011 the CA affirmed Comerciante's

conviction. It held that PO3 Calag had probable cause to effect the
warrantless arrest of Comerciante, given that the latter was
committing a crime in flagrante delicto; and that he personally saw
the latter exchanging plastic sachets with Dasilla. According to the CA,
this was enough to draw a reasonable suspicion that those sachets
might be shabu, and thus, PO3 Calag had every reason to inquire on
the matter right then and there.15redarclaw

Dissatisfied, Comerciante moved for reconsideration16 which was,

however, denied in a Resolution17 dated February 19, 2013. Hence, this
petition.18redarclaw

The Issue Before the Court

The core Issue for the Court's resolution is whether or not the CA
correctly affirmed Comerciante's conviction for violation of Section 11,
Article II of RA 9165.

In his petition, Comerciante essentially contends that PO3 Carag did

not effect a valid warrantless arrest on him. Consequently, the
evidence gathered as a result of such illegal warrantless arrest, i.e.,
the plastic sachets containing shabu should be rendered inadmissible,
necessarily resulting in his acquittal.19redarclaw

On the other hand, the Office of the Solicitor General, on behalf of

respondent People of the Philippines, maintains that Comerciante's
warrantless arrest was validly made pursuant to the "stop and frisk"
rule, especially considering that he was caught in flagrante delicto in
possession of illegal drugs.20redarclaw

The Court's Ruling

The petition is meritorious.

Section 2, Article III21 of the Constitution mandates that a search and

seizure must be carried out through or on the strength of a judicial
warrant predicated upon the existence of probable cause; in the
absence of such warrant, such search and seizure becomes, as a
general rule, "unreasonable" within the meaning of said constitutional
provision. To protect people from unreasonable searches and seizures,
Section 3 (2), Article III22 of the Constitution provides an exclusionary
rule which instructs that evidence obtained and confiscated on the
occasion of such unreasonable searches and seizures are deemed
tainted and should be excluded for being the proverbial fruit of a
poisonous tree. In other words, evidence obtained from unreasonable
searches and seizures shall be inadmissible in evidence for any
purpose in any proceeding.23redarclaw

The exclusionary rule is not, however, an absolute and rigid

proscription. One of the recognized exceptions established by
jurisprudence is a search incident to a lawful arrest.24 In this instance,
the law requires that there first be a lawful arrest before a search can
be made the process cannot be reversed.25 Section 5, Rule 113 of the
Revised Rules on Criminal Procedure lays down the rules on lawful
warrantless arrests, as follows:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
SEC. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a
person:LawlibraryofCRAlaw

(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail and shall be proceeded against in accordance
with Section 7 of Rule 112.
The aforementioned provision provides three (3) instances when a
warrantless arrest may be lawfully effected: (a) arrest of a suspect in
flagrante delicto; (b) arrest of a suspect where, based on personal
knowledge of the arresting officer, there is probable cause that said
suspect was the perpetrator of a crime which had just been
committed; (c) arrest of a prisoner who has escaped from custody
serving final judgment or temporarily confined during the pendency of
his case or has escaped while being transferred from one confinement
to another.26redarclaw

For a warrantless arrest under Section 5 (a) to operate, two (2)

elements must concur, namely: (a) the person to be arrested must
execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (b) such overt act
is done in the presence or within the view of the arresting
officer.27 On the other hand, Section 5 (b) requires for its application
that at the time of the arrest, an offense had in fact just been
committed and the arresting officer had personal knowledge of facts
indicating that the accused had committed it.28redarclaw

In both instances, the officer's personal knowledge of the fact of the

commission of an offense is absolutely required. Under Section 5 (a),
the officer himself witnesses the crime; while in Section 5 (b), he
knows for a fact that a crime has just been committed.29redarclaw

A judicious review of the factual milieu of the instant case reveals that
there could have been no lawful warrantless arrest made on
Comerciante. PO3 Calag himself admitted that he was aboard a
motorcycle cruising at a speed of around 30 kilometers per hour when
he saw Comerciante and Dasilla standing around and showing
"improper and unpleasant movements," with one of them handing
plastic sachets to the other. On the basis of the foregoing, he decided
to effect an arrest. PO3 Calag's testimony on direct examination is
revelatory:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
Pros. Silao:
Q: Now on July 30, 2003 around 10:00 o'clock in the evening, kindly
tell the court where were you?
A: We were then conducting our patrol on a motorbike ma'am.
xxxx
Q: And who were with you while you were patrolling?
A: Eduardo Radan, Ma'am.
Q: And who is this Eduardo Radan?
A: He is an agent of the Narcotics Group, ma'am.
Q: While you were along Private Road, Hulo, Mandaluyong City, what
 unusual incident that happened if any?
A: We spotted somebody who was then as if handing a plastic sachet
to someone.
xxxx
Q: Now how far were you when you saw this incident from these
two male persons you already identified?
A: About ten (10) meters away ma'am.
Q: What were their positions in relation to you when you saw them in
that particular act?
A: They were quite facing me then.
Q: What was the speed of your motorcycle when you were
traversing this Private Road, Hulo, Mandaluyong City?
A: About thirty (30) kilometers per hour, ma'am.
Q: And who was driving the motorcycle?
A: Eduardo Radan, ma'am.
Q: When you spotted them as if handing something to each other,
what did you do?
A: We stopped ma'am.
Q: And how far were you from them when you stopped, more or less?
A: We passed by them for a short distance before we stopped ma'am.
Q: And after you passed by them and you said you stopped, what was
the reaction of these two male persons?
A: They were surprised, ma'am.
xxxx
Q: And what was their reaction when you said you introduced
yourself as police officer?
A: They were surprised.
Q: When yon say "nabigla" what was their reaction that made you
say that they were surprised?
A: They were stunned.
Q: After they were stunned, what did you do next, police officer?
A: I arrested them, ma'am. I invited them.
Q: What did you say to them? How did you invite them? In
short, napakasimple lang ng tanong ko sa yo eh. Did you say
anything?
Court:
Mr. Witness, stop making unnecessary movements, just listen.
Pros. Silao:
Are you fit to testify? May sakit ka ba o wala?
Witness:
Wala po.
Pros. Silao:
Eh, bakit di ka makapagsalita?
Court:
You keep touching your eyes. Just relax. Answer the question, ano
sinabi mo sa kanila?
Pros. Silao:
Are you fit to testify? Wala ka bang sakit?
Witness:
Wala po.
xxxx
Q: From what portion of his body, I am referring to Alvin
Comerciante did you recover the plastic sachet?
A: From his hand ma'am.
Q: Left or right hand?
Pros. Silao:
You cannot recall? Hindi mo matandaan. Sabihin mo kung hindi
mo matandaan, no problem. Kaliwa, kanan or you cannot
recall?30 (Emphases and underscoring supplied)
On the basis of such testimony, the Court finds it highly implausible
that PO3 Calag, even assuming that he has perfect vision, would be
able to identify with reasonable accuracy especially from a distance of
around 10 meters, and while aboard a motorcycle cruising at a speed
of 30 kilometers per hour miniscule amounts of white crystalline
substance inside two (2) very small plastic sachets held by
Comerciante. The Court also notes that no other overt act could be
properly attributed to Comerciante as to rouse suspicion in the mind
of PO3 Calag that the former had just committed, was committing, or
was about to commit a crime. Verily, the acts of standing around with
a companion and handing over something to the latter cannot in any
way be considered criminal acts. In fact, even if Comerciante and his
companion were showing "improper and unpleasant movements" as
put by PO3 Calag, the same would not have been sufficient in order to
effect a lawful warrantless arrest under Section 5 (a), Rule 113 of the
Revised Rules on Criminal Procedure.31 That his reasonable suspicion
bolstered by (a) the fact that he had seen his fellow officers arrest
persons in possession of shabu; and (b) his trainings and seminars on
illegal drugs when he was still assigned in the province are
insufficient to create a conclusion that what he purportedly saw in
Comerciante was indeed shabu.32redarclaw

Neither has the prosecution established that the rigorous conditions

set forth in Section 5 (b), Rule 113, have been complied with, i.e., that
an offense had in fact just been committed and the arresting officer
had personal knowledge of facts indicating that the accused had
committed it. As already discussed, the factual backdrop of the instant
case failed to show that PO3 Calag had personal knowledge that a
crime had been indisputably committed by Comerciante. Verily, it is
not enough that the arresting officer had reasonable ground to believe
that the accused had just committed a crime; a crime must, in fact,
have been committed first, which does not obtain in this
case.33redarclaw

In this relation, the Court finds respondent's assertion that there was
a valid "stop and frisk" search made on Comerciante untenable.
In People v. Cogaed,34 the Court had an opportunity to exhaustively
explain "stop and frisk" searches:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
"Stop and frisk" searches (sometimes referred to as Terry searches)
are necessary for law enforcement. That is, law enforcers should be
given the legal arsenal to prevent the commission of offenses.
However, this should be balanced with the need to protect the privacy
of citizens in accordance with Article III, Section 2 of the Constitution.

The balance lies in the concept of "suspiciousness" present where

the police officer finds himself or herself in. This may be
undoubtedly based on the experience of the police officer. Experienced
police officers have personal experience dealing with criminals and
criminal behavior. Hence, they should have the ability to discern -
based on facts that they themselves observe - whether an individual is
acting in a suspicious manner. Clearly, a basic criterion would be
that the police officer, with his or her personal knowledge, must
observe the facts leading to the suspicion of an illicit act.

x x x x

Normally, "stop and frisk" searches do not give the law enforcer an
opportunity to confer with a judge to determine probable cause.
In Posadas v. Court of Appeals, one of the earliest cases adopting the
"stop and frisk" doctrine in Philippine jurisprudence, this
court approximated the suspicious circumstances as probable
cause:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
The probable cause is that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he
was concealing something illegal in the bag and it was the right and
duty of the police officers to inspect the same.
For warrantless searches, probable cause was defined as a reasonable
ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person
accused is guilty of the offense with which he is charged.

Malacat v. Court of Appeals clarifies the requirement further. It does

not have to be probable cause, but it cannot be mere suspicion. It
has to be a genuine reason to serve the purposes of the "stop and
frisk" exception:
ChanRoblesVirtualawlibrary
Other notable points of Terry are that while probable cause is not
required to conduct a "stop and frisk," it nevertheless holds that
mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officer's
experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him.
In his dissent for Esquillo v. People, Justice Bersamin reminds us
that police officers must not rely on a single suspicious
circumstance. There should be "presence of more than one
seemingly innocent activity, which, taken together, warranted a
reasonable inference of criminal activity." The Constitution
prohibits "unreasonable searches and seizures." Certainly, reliance on
only one suspicious circumstance or none at all will not result in a
reasonable search.35 (Emphases and underscoring supplied)
In this case, the Court reiterates that Comerciante's acts of standing
around with a companion and handing over something to the latter do
not constitute criminal acts. These circumstances are not enough to
create a reasonable inference of criminal activity which would
constitute a "genuine reason" for PO3 Calag to conduct a "stop and
frisk" search on the former. In this light, the "stop and frisk" search
made on Comerciante should be deemed unlawful.

In sum, there was neither a valid warrantless arrest nor a valid "stop
and frisk" search made on Comerciante. As such,
the shabu purportedly seized from him is rendered inadmissible in
evidence for being the proverbial fruit of the poisonous tree. Since the
confiscated shabu is the very corpus delicti of the crime charged,
Comerciante must necessarily be acquitted and exonerated from all
criminal liability.

WHEREFORE, the petition is GRANTED. Accordingly, the Decision

dated October 20, 2011 and the Resolution dated February 19, 2013 of
the Court of Appeals in CA-G.R. CR No. 32813 are
hereby REVERSED and SET ASIDE. Accordingly, petitioner Alvin
Comerciante y Gonzales is hereby ACQUITTED of the crime of
violating Section 11, Article II of Republic Act No. 9165. The Director
of the Bureau of Corrections is ordered to cause his immediate
release, unless he is being lawfully held for any other reason.

SO ORDERED.cralawlawlibrary

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 197788 February 29, 2012

RODEL LUZ y ONG, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES,1 Respondent.

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 seeking to set

aside the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516
dated 18 February 20112 and Resolution dated 8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained
the version of the prosecution, are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1

of the Naga City Police Station as a traffic enforcer, substantially
testified that on March 10, 2003 at around 3:00 o’clock in the
morning, he saw the accused, who was coming from the direction of
Panganiban Drive and going to Diversion Road, Naga City, driving a
motorcycle without a helmet; that this prompted him to flag down the
accused for violating a municipal ordinance which requires all
motorcycle drivers to wear helmet (sic) while driving said motor
vehicle; that he invited the accused to come inside their sub-station
since the place where he flagged down the accused is almost in front
of the said sub-station; that while he and SPO1 Rayford Brillante were
issuing a citation ticket for violation of municipal ordinance, he
noticed that the accused was uneasy and kept on getting something
from his jacket; that he was alerted and so, he told the accused to take
out the contents of the pocket of his jacket as the latter may have a
weapon inside it; that the accused obliged and slowly put out the
contents of the pocket of his jacket which was a nickel-like tin or
metal container about two (2) to three (3) inches in size, including
two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife;
that upon seeing the said container, he asked the accused to open it;
that after the accused opened the container, he noticed a cartoon
cover and something beneath it; and that upon his instruction, the
accused spilled out the contents of the container on the table which
turned out to be four (4) plastic sachets, the two (2) of which were
empty while the other two (2) contained suspected shabu.3

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a

plea of "Not guilty" to the charge of illegal possession of dangerous
drugs. Pretrial was terminated on 24 September 2003, after which,
trial ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic

chemist testified for the prosecution. On the other hand, petitioner
testified for himself and raised the defense of planting of evidence and
extortion.

In its 19 February 2009 Decision,4 the RTC convicted petitioner of

illegal possession of dangerous drugs5 committed on 10 March 2003. It
found the prosecution evidence sufficient to show that he had been
lawfully arrested for a traffic violation and then subjected to a valid
search, which led to the discovery on his person of two plastic sachets
later found to contain shabu. The RTC also found his defense of frame-
up and extortion to be weak, self-serving and unsubstantiated. The
dispositive portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL

LUZ y ONG GUILTY beyond reasonable doubt for the crime of violation
of Section 11, Article II of Republic Act No. 9165 and sentencing him to
suffer the indeterminate penalty of imprisonment ranging from
twelve (12) years and (1) day, as minimum, to thirteen (13) years, as
maximum, and to pay a fine of Three Hundred Thousand Pesos (₱
300,000.00).
The subject shabu is hereby confiscated for turn over to the Philippine
Drug Enforcement Agency for its proper disposition and destruction in
accordance with law.

SO ORDERED.6

Upon review, the CA affirmed the RTC’s Decision.

On 12 September 2011, petitioner filed under Rule 45 the instant

Petition for Review on Certiorari dated 1 September 2011. In a
Resolution dated 12 October 2011, this Court required respondent to
file a comment on the Petition. On 4 January 2012, the latter filed its
Comment dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT

SHABU IS INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE

OF DUTY OF THE POLICE OFFICER CANNOT BE RELIED UPON IN
THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE

ALLEGED SUBJECT SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT

PROVEN BEYOND THE REASONABLE DOUBT (sic).7

Petitioner claims that there was no lawful search and seizure, because
there was no lawful arrest. He claims that the finding that there was a
lawful arrest was erroneous, since he was not even issued a citation
ticket or charged with violation of the city ordinance. Even assuming
there was a valid arrest, he claims that he had never consented to the
search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested,
the RTC held thus:

It is beyond dispute that the accused was flagged down and

apprehended in this case by Police Officers Alteza and Brillante for
violation of City Ordinance No. 98-012, an ordinance requiring the use
of crash helmet by motorcycle drivers and riders thereon in the City of
Naga and prescribing penalties for violation thereof. The accused
himself admitted that he was not wearing a helmet at the time when
he was flagged down by the said police officers, albeit he had a helmet
in his possession. Obviously, there is legal basis on the part of the
apprehending officers to flag down and arrest the accused because the
latter was actually committing a crime in their presence, that is, a
violation of City Ordinance No. 98-012. In other words, the accused,
being caught in flagrante delicto violating the said Ordinance, he could
therefore be lawfully stopped or arrested by the apprehending
officers. x x x.8

We find the Petition to be impressed with merit, but not for the
particular reasons alleged. In criminal cases, an appeal throws the
entire case wide open for review and the reviewing tribunal can
correct errors, though unassigned in the appealed judgment, or even
reverse the trial court’s decision based on grounds other than those
that the parties raised as errors.9

First, there was no valid arrest of petitioner. When he was flagged

down for committing a traffic violation, he was not, ipso facto and
solely for this reason, arrested.

Arrest is the taking of a person into custody in order that he or she

may be bound to answer for the commission of an offense.10 It is
effected by an actual restraint of the person to be arrested or by that
person’s voluntary submission to the custody of the one making the
arrest. Neither the application of actual force, manual touching of the
body, or physical restraint, nor a formal declaration of arrest, is
required. It is enough that there be an intention on the part of one of
the parties to arrest the other, and that there be an intent on the part
of the other to submit, under the belief and impression that
submission is necessary.11

Under R.A. 4136, or the Land Transportation and Traffic Code, the
general procedure for dealing with a traffic violation is not the arrest
of the offender, but the confiscation of the driver’s license of the
latter:

SECTION 29. Confiscation of Driver's License. — Law enforcement and

peace officers of other agencies duly deputized by the Director shall,
in apprehending a driver for any violation of this Act or any
regulations issued pursuant thereto, or of local traffic rules and
regulations not contrary to any provisions of this Act, confiscate the
license of the driver concerned and issue a receipt prescribed and
issued by the Bureau therefor which shall authorize the driver to
operate a motor vehicle for a period not exceeding seventy-two hours
from the time and date of issue of said receipt. The period so fixed in
the receipt shall not be extended, and shall become invalid thereafter.
Failure of the driver to settle his case within fifteen days from the
date of apprehension will be a ground for the suspension and/or
revocation of his license.

Similarly, the Philippine National Police (PNP) Operations

Manual12 provides the following procedure for flagging down vehicles
during the conduct of checkpoints:

SECTION 7. Procedure in Flagging Down or Accosting Vehicles While

in Mobile Car. This rule is a general concept and will not apply in hot
pursuit operations. The mobile car crew shall undertake the following,
when applicable: x x x

m. If it concerns traffic violations, immediately issue a Traffic Citation

Ticket (TCT) or Traffic Violation Report (TVR). Never indulge in
prolonged, unnecessary conversation or argument with the driver or
any of the vehicle’s occupants;

At the time that he was waiting for PO3 Alteza to write his citation
ticket, petitioner could not be said to have been "under arrest." There
was no intention on the part of PO3 Alteza to arrest him, deprive him
of his liberty, or take him into custody. Prior to the issuance of the
ticket, the period during which petitioner was at the police station
may be characterized merely as waiting time. In fact, as found by the
trial court, PO3 Alteza himself testified that the only reason they went
to the police sub-station was that petitioner had been flagged down
"almost in front" of that place. Hence, it was only for the sake of
convenience that they were waiting there. There was no intention to
take petitioner into custody.

In Berkemer v. McCarty,13 the United States (U.S.) Supreme Court

discussed at length whether the roadside questioning of a motorist
detained pursuant to a routine traffic stop should be considered
custodial interrogation. The Court held that, such questioning does not
fall under custodial interrogation, nor can it be considered a formal
arrest, by virtue of the nature of the questioning, the expectations of
the motorist and the officer, and the length of time the procedure is
conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop significantly
curtails the "freedom of action" of the driver and the passengers, if
any, of the detained vehicle. Under the law of most States, it is a
crime either to ignore a policeman’s signal to stop one’s car or, once
having stopped, to drive away without permission. x x x

However, we decline to accord talismanic power to the phrase in the

Miranda opinion emphasized by respondent. Fidelity to the doctrine
announced in Miranda requires that it be enforced strictly, but only in
those types of situations in which the concerns that powered the
decision are implicated. Thus, we must decide whether a traffic stop
exerts upon a detained person pressures that sufficiently impair his
free exercise of his privilege against self-incrimination to require that
he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a

person questioned will be induced "to speak where he would not
otherwise do so freely," Miranda v. Arizona, 384 U. S., at 467. First,
detention of a motorist pursuant to a traffic stop is presumptively
temporary and brief. The vast majority of roadside detentions last
only a few minutes. A motorist’s expectations, when he sees a
policeman’s light flashing behind him, are that he will be obliged to
spend a short period of time answering questions and waiting while
the officer checks his license and registration, that he may then be
given a citation, but that in the end he most likely will be allowed to
continue on his way. In this respect, questioning incident to an
ordinary traffic stop is quite different from stationhouse
interrogation, which frequently is prolonged, and in which the
detainee often is aware that questioning will continue until he
provides his interrogators the answers they seek. See id., at 451.

Second, circumstances associated with the typical traffic stop are not
such that the motorist feels completely at the mercy of the police. To
be sure, the aura of authority surrounding an armed, uniformed
officer and the knowledge that the officer has some discretion in
deciding whether to issue a citation, in combination, exert some
pressure on the detainee to respond to questions. But other aspects of
the situation substantially offset these forces. Perhaps most
importantly, the typical traffic stop is public, at least to some degree.
xxx

In both of these respects, the usual traffic stop is more analogous to a

so-called "Terry stop," see Terry v. Ohio, 392 U. S. 1 (1968), than to a
formal arrest. x x x The comparatively nonthreatening character of
detentions of this sort explains the absence of any suggestion in our
opinions that Terry stops are subject to the dictates of Miranda. The
similarly noncoercive aspect of ordinary traffic stops prompts us to
hold that persons temporarily detained pursuant to such stops are not
"in custody" for the purposes of Miranda.

xxx xxx xxx

We are confident that the state of affairs projected by respondent will

not come to pass. It is settled that the safeguards prescribed by
Miranda become applicable as soon as a suspect’s freedom of action is
curtailed to a "degree associated with formal arrest." California v.
Beheler, 463 U. S. 1121, 1125 (1983) (per curiam). If a motorist who
has been detained pursuant to a traffic stop thereafter is subjected to
treatment that renders him "in custody" for practical purposes, he
will be entitled to the full panoply of protections prescribed by
Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per
curiam). (Emphasis supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein
was only subjected to modest questions while still at the scene of the
traffic stop, he was not at that moment placed under custody (such
that he should have been apprised of his Miranda rights), and neither
can treatment of this sort be fairly characterized as the functional
equivalent of a formal arrest. Similarly, neither can petitioner here be
considered "under arrest" at the time that his traffic citation was
being made.

It also appears that, according to City Ordinance No. 98-012, which

was violated by petitioner, the failure to wear a crash helmet while
riding a motorcycle is penalized by a fine only. Under the Rules of
Court, a warrant of arrest need not be issued if the information or
charge was filed for an offense penalized by a fine only. It may be
stated as a corollary that neither can a warrantless arrest be made for
such an offense.

This ruling does not imply that there can be no arrest for a traffic
violation. Certainly, when there is an intent on the part of the police
officer to deprive the motorist of liberty, or to take the latter into
custody, the former may be deemed to have arrested the motorist. In
this case, however, the officer’s issuance (or intent to issue) a traffic
citation ticket negates the possibility of an arrest for the same
violation.

Even if one were to work under the assumption that petitioner was
deemed "arrested" upon being flagged down for a traffic violation and
while awaiting the issuance of his ticket, then the requirements for a
valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be
the duty of the arresting officer to inform the latter of the reason for
the arrest and must show that person the warrant of arrest, if any.
Persons shall be informed of their constitutional rights to remain
silent and to counsel, and that any statement they might make could
be used against them.14 It may also be noted that in this case, these
constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of
dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings
must also be given to a person apprehended due to a traffic violation:

The purposes of the safeguards prescribed by Miranda are to ensure

that the police do not coerce or trick captive suspects into confessing,
to relieve the "inherently compelling pressures" "generated by the
custodial setting itself," "which work to undermine the individual’s
will to resist," and as much as possible to free courts from the task of
scrutinizing individual cases to try to determine, after the fact,
whether particular confessions were voluntary. Those purposes are
implicated as much by in-custody questioning of persons suspected of
misdemeanors as they are by questioning of persons suspected of
felonies.

If it were true that petitioner was already deemed "arrested" when he

was flagged down for a traffic violation and while he waiting for his
ticket, then there would have been no need for him to be arrested for
a second time—after the police officers allegedly discovered the
drugs—as he was already in their custody.

Second, there being no valid arrest, the warrantless search that

resulted from it was likewise illegal.

The following are the instances when a warrantless search is allowed:

(i) a warrantless search incidental to a lawful arrest; (ii) search of
evidence in "plain view;" (iii) search of a moving vehicle; (iv)
consented warrantless search; (v) customs search; (vi) a "stop and
frisk" search; and (vii) exigent and emergency circumstances. 15 None
of the above-mentioned instances, especially a search incident to a
lawful arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be

inadvertently discovered, was not in "plain view." It was actually
concealed inside a metal container inside petitioner’s pocket. Clearly,
the evidence was not immediately apparent.16

Neither was there a consented warrantless search. Consent to a

search is not to be lightly inferred, but shown by clear and convincing
evidence.17 It must be voluntary in order to validate an otherwise
illegal search; that is, the consent must be unequivocal, specific,
intelligently given and uncontaminated by any duress or coercion.
While the prosecution claims that petitioner acceded to the
instruction of PO3 Alteza, this alleged accession does not suffice to
prove valid and intelligent consent. In fact, the RTC found that
petitioner was merely "told" to take out the contents of his pocket. 18

Whether consent to the search was in fact voluntary is a question of

fact to be determined from the totality of all the circumstances.
Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given:
(1) the age of the defendant; (2) whether the defendant was in a
public or a secluded location; (3) whether the defendant objected to
the search or passively looked on; (4) the education and intelligence
of the defendant; (5) the presence of coercive police procedures; (6)
the defendant’s belief that no incriminating evidence would be found;
(7) the nature of the police questioning; (8) the environment in which
the questioning took place; and (9) the possibly vulnerable subjective
state of the person consenting. It is the State that has the burden of
proving, by clear and positive testimony, that the necessary consent
was obtained, and was freely and voluntarily given.19 In this case, all
that was alleged was that petitioner was alone at the police station at
three in the morning, accompanied by several police officers. These
circumstances weigh heavily against a finding of valid consent to a
warrantless search.

Neither does the search qualify under the "stop and frisk" rule. While
the rule normally applies when a police officer observes suspicious or
unusual conduct, which may lead him to believe that a criminal act
may be afoot, the stop and frisk is merely a limited protective search
of outer clothing for weapons.20

In Knowles v. Iowa,21 the U.S. Supreme Court held that when a police
officer stops a person for speeding and correspondingly issues a
citation instead of arresting the latter, this procedure does not
authorize the officer to conduct a full search of the car. The Court
therein held that there was no justification for a full-blown search
when the officer does not arrest the motorist. Instead, police officers
may only conduct minimal intrusions, such as ordering the motorist to
alight from the car or doing a patdown:

In Robinson, supra, we noted the two historical rationales for the

"search incident to arrest" exception: (1) the need to disarm the
suspect in order to take him into custody, and (2) the need to preserve
evidence for later use at trial. x x x But neither of these underlying
rationales for the search incident to arrest exception is sufficient to
justify the search in the present case.

We have recognized that the first rationale—officer safety—is "‘both

legitimate and weighty,’" x x x The threat to officer safety from
issuing a traffic citation, however, is a good deal less than in the case
of a custodial arrest. In Robinson, we stated that a custodial arrest
involves "danger to an officer" because of "the extended exposure
which follows the taking of a suspect into custody and transporting
him to the police station." 414 U. S., at 234-235. We recognized that
"[t]he danger to the police officer flows from the fact of the arrest,
and its attendant proximity, stress, and uncertainty, and not from the
grounds for arrest." Id., at 234, n. 5. A routine traffic stop, on the
other hand, is a relatively brief encounter and "is more analogous to a
so-called ‘Terry stop’ . . . than to a formal arrest." Berkemer v.
McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U.
S. 291, 296 (1973) ("Where there is no formal arrest . . . a person
might well be less hostile to the police and less likely to take
conspicuous, immediate steps to destroy incriminating evidence").

This is not to say that the concern for officer safety is absent in the
case of a routine traffic stop.1âwphi1 It plainly is not. See Mimms,
supra, at 110; Wilson, supra, at 413-414. But while the concern for
officer safety in this context may justify the "minimal" additional
intrusion of ordering a driver and passengers out of the car, it does
not by itself justify the often considerably greater intrusion attending
a full fieldtype search. Even without the search authority Iowa urges,
officers have other, independent bases to search for weapons and
protect themselves from danger. For example, they may order out of a
vehicle both the driver, Mimms, supra, at 111, and any passengers,
Wilson, supra, at 414; perform a "patdown" of a driver and any
passengers upon reasonable suspicion that they may be armed and
dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry
patdown" of the passenger compartment of a vehicle upon reasonable
suspicion that an occupant is dangerous and may gain immediate
control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983);
and even conduct a full search of the passenger compartment,
including any containers therein, pursuant to a custodial arrest, New
York v. Belton, 453 U. S. 454, 460 (1981).

Nor has Iowa shown the second justification for the authority to
search incident to arrest—the need to discover and preserve evidence.
Once Knowles was stopped for speeding and issued a citation, all the
evidence necessary to prosecute that offense had been obtained. No
further evidence of excessive speed was going to be found either on
the person of the offender or in the passenger compartment of the car.
(Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may

have failed to object to the illegality of his arrest at the earliest
opportunity, a waiver of an illegal warrantless arrest does not,
however, mean a waiver of the inadmissibility of evidence seized
during the illegal warrantless arrest.22

The Constitution guarantees the right of the people to be secure in

their persons, houses, papers and effects against unreasonable
searches and seizures.23 Any evidence obtained in violation of said
right shall be inadmissible for any purpose in any proceeding. While
the power to search and seize may at times be necessary to the public
welfare, still it must be exercised and the law implemented without
contravening the constitutional rights of citizens, for the enforcement
of no statute is of sufficient importance to justify indifference to the
basic principles of government.24

The subject items seized during the illegal arrest are

inadmissible.25 The drugs are the very corpus delicti of the crime of
illegal possession of dangerous drugs. Thus, their inadmissibility
precludes conviction and calls for the acquittal of the accused.26
WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision
of the Court of Appeals in CA-G.R. CR No. 32516 affirming the
judgment of conviction dated 19 February 2009 of the Regional Trial
Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No.
RTC 2003-0087, is hereby REVERSED and SET ASIDE. Petitioner Rodel
Luz y Ong is hereby ACQUITTED and ordered immediately released
from detention, unless his continued confinement is warranted by
some other cause or ground.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 180661 December 11, 2013

GEORGE ANTIQUERA y CODES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a supposed warrantless arrest and a subsequent

search prompted by the police officers' chance sighting through an
ajar door of the accused engaged in pot session.

The Facts and the Case

On January 13, 2004 the second Assistant City Prosecutor of Pasay City
charged the accused George Codes Antiquera* and Corazon Olivenza
Cruz with illegal ·possession of paraphernalia for dangerous
drugs 1 before the Regional Trial Court (RTC) of Pasay City in Criminal
Case 04-0100-CFM. 2 Since the accused Cruz jumped bail, the court
tried her in absentia. 3

The prosecution evidence shows that at around 4:45 a.m. of February

11, 2004, PO1 Gregorio Recio, PO1 Laurence Cabutihan, P/Insp. Eric
Ibon, PO1 Rodelio Rania, and two civilian operatives on board a patrol
car and a tricycle were conducting a police visibility patrol on David
Street, Pasay City, when they saw two unidentified men rush out of
house number 107-C and immediately boarded a jeep.

Suspecting that a crime had been committed, the police officers

approached the house from where the men came and peeked through
the partially opened door. PO1 Recio and PO1 Cabutihan saw accused
Antiquera holding an improvised tooter and a pink lighter. Beside him
was his live-in partner, Cruz, who was holding an aluminum foil and
an improvised burner. They sat facing each other at the living room.
This prompted the police officers to enter the house, introduce
themselves, and arrest Antiquera and Cruz.4

While inspecting the immediate surroundings, PO1 Cabutihan saw a

wooden jewelry box atop a table. It contained an improvised burner,
wok, scissors, 10 small transparent plastic sachets with traces of
white crystalline substance, improvised scoop, and seven unused
strips of aluminum foil. The police officers confiscated all these and
brought Antiquera and Cruz to the Drug Enforcement Unit of the
Philippine National Police in Pasay City for further investigation and
testing.5

A forensic chemical officer examined the confiscated drug

paraphernalia and found them positive for traces of
methamphetamine hydrochloride or "shabu."6

Accused Antiquera gave a different story. He said that on the date and
time in question, he and Cruz were asleep in their house when he was
roused by knocking on the door. When he went to open it, three armed
police officers forced themselves into the house. One of them shoved
him and said, "D’yan ka lang, pusher ka." He was handcuffed and
someone instructed two of the officers to go to his room. The police
later brought accused Antiquera and Cruz to the police station and
there informed them of the charges against them. They were shown a
box that the police said had been recovered from his house.7

On July 30, 2004 the RTC rendered a Decision8 that found accused
Antiquera and Cruz guilty of the crime charged and sentenced them to
a prison term ranging from six months and one day to two years and
four months, and to pay a fine of ₱10,000.00 each and the costs of the
suit.
The RTC said that the prosecution proved beyond reasonable doubt
that the police caught accused Antiquera and Cruz in the act of
using shabu and having drug paraphernalia in their possession. Since
no ill motive could be attributed to PO1 Recio and PO1 Cabutihan, the
court accorded full faith and credit to their testimony and rejected the
self-serving claim of Antiquera.

The trial court gave no weight to accused Antiquera’s claim of illegal

arrest, given PO1 Recio and PO1 Cabutihan’s credible testimony that,
prior to their arrest, they saw Antiquera and Cruz in a pot session at
their living room and in possession of drug paraphernalia. The police
officers were thus justified in arresting the two without a warrant
pursuant to Section 5, Rule 113 of the Rules of Criminal Procedure.9

On appeal, the Court of Appeals (CA) rendered a Decision10 on

September 21, 2007 affirming in full the decision of the trial court.
The accused moved for reconsideration but the CA denied it. 11 The
accused is now before this Court seeking acquittal.

The Issue Presented

The issue in this case is whether or not the CA erred in finding

accused Antiquera guilty beyond reasonable doubt of illegal
possession of drug paraphernalia based on the evidence of the police
officers that they saw him and Cruz in the act of possessing drug
paraphernalia.

Ruling of the Court

The prosecution’s theory, upheld by both the RTC and the CA, is that it
was a case of valid warrantless arrest in that the police officers saw
accused Antiquera and Cruz through the door of their house, in the act
of having a pot session. That valid warrantless arrest gave the officers
the right as well to search the living room for objects relating to the
crime and thus seize the paraphernalia they found there.

The prosecution contends that, since the seized paraphernalia tested

positive for shabu, they were no doubt used for smoking, consuming,
administering, injecting, ingesting, or introducing dangerous drug
into the body in violation of Section 12 of Republic Act 9165. That the
accused tested negative for shabu, said the prosecution, had no
bearing on the crime charged which was for illegal possession of drug
paraphernalia, not for illegal use of dangerous drugs. The prosecution
added that even assuming that the arrest of the accused was irregular,
he is already considered to have waived his right to question the
validity of his arrest when he voluntarily submitted himself to the
court’s jurisdiction by entering a plea of not guilty.12

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that
a "peace officer or a private person may, without a warrant, arrest a
person when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense." This is an arrest in flagrante delicto.13 The overt act
constituting the crime is done in the presence or within the view of
the arresting officer.14

But the circumstances here do not make out a case of arrest made in
flagrante delicto.

1. The police officers claim that they were alerted when they saw two
unidentified men suddenly rush out of 107 David Street, Pasay City.
Since they suspected that a crime had been committed, the natural
thing for them to do was to give chase to the jeep that the two fleeing
men boarded, given that the officers were in a patrol car and a
tricycle. Running after the fleeing suspects was the more urgent task
but the officers instead gave priority to the house even when they
heard no cry for help from it.

2. Admittedly, the police officers did not notice anything amiss going
on in the house from the street where they stood. Indeed, even as they
peeked through its partially opened door, they saw no activity that
warranted their entering it. Thus, PO1 Cabutihan testified:

THE COURT:

Q – By the way, Mr. Cabutihan, when you followed your companion

towards the open door, how was the door open? Was it totally open,
or was it partially open?

A – It was partially open Your Honor.

Q – By how much, 1/3, 1/2? Only by less than one (1) foot?

A – More or less 4 to 6 inches, Your Honor.

Q – So how were you able to know, to see the interior of the house
if the door was only open by 6 inches? Or did you have to push the
door?

A – We pushed the door, Your Honor.

xxxx

Q – Were you allowed to just go towards the door of the house, push
its door and peeped inside it, as a police officer?

A – Kasi po naghinala po kami baka may…

Q – Are you not allowed to – Are you not required to get a search
warrant before you can search the interior of the house?

A – Yes, Your Honor.

Q – What do you mean by yes? Would you first obtain a search

warrant before searching the interior of the house?

A – Yes, Your Honor.

Q – So why did you not a [sic] secure a search warrant first before you
tried to investigate the house, considering your admission that you
suspected that there was something wrong inside the house?

A – Because we saw them that they were engaged in pot session, Your
Honor.

Q – But before you saw them, you just had to push the door wide
open to peep through its opening because you did not know what
was happening inside?

A – Yes, Your Honor.15 (Emphasis supplied)

Clearly, no crime was plainly exposed to the view of the arresting

officers that authorized the arrest of accused Antiquera without
warrant under the above-mentioned rule. Considering that his arrest
was illegal, the search and seizure that resulted from it was likewise
illegal.16 Consequently, the various drug paraphernalia that the police
officers allegedly found in the house and seized are inadmissible,
having proceeded from an invalid search and seizure. Since the
confiscated drug paraphernalia is the very corpus delicti of the crime
charged, the Court has no choice but to acquit the accused.17

One final note. The failure of the accused to object to the irregularity
of his arrest by itself is not enough to sustain his conviction. A waiver
of an illegal warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during the illegal warrantless
arrest.18

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision

dated September 21, 2007 and Resolution dated November 16, 2007 of
the Court of Appeals in CA-G.R. CR 28937 and ACQUITS the accused
George Antiquera y Codes of the crime of which he is charged for lack
of evidence sufficient to establish his guilt beyond reasonable
doubt.1âwphi1 The Court further ORDERS the cancellation and release
of the bail bond he posted for his provisional liberty.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 200304 January 15, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
DONALD VASQUEZ y SANDIGAN @ "DON," Accused-Appellant,

DECISION

LEONARDO-DE CASTRO, J.:

The case before this Court is an appeal from the Decision1 dated May
31, 2011 of the Court of Appeals in CA-G.R. CR.-H.C. No. 04201. Said
decision affirmed with modification the Joint Decision2 dated August 6
2009 of the Regional Trial Court (RTC) of Manila, Branch 41, in
Criminal Case Nos. 98-164174 and 98-164175, which convicted the
appellant Donald Vasquez y Sandigan of the crimes of illegal sale and
illegal possession of regulated drugs under Sections 15 and 16 Article
III of Republic Act No. 6425, as amended, otherwise known as the
Dangerous Drugs Act of 1972.

Criminal Case No. 98-164174 stemmed from a charge of violation of

Section 15 Article III of Republic Act No. 6425, as amended, 3 which
was allegedly committed as follows:

That on or about April 3, 1998 in the City of Manila, Philippines, the

said accused not having been authorized by law to sell, dispense,
deliver, transport or distribute any regulated drug, did then and there
[willfully], unlawfully and knowingly sell or offer for sale, dispense,
deliver, transport or distribute 45.46 grams, 44.27 grams, 45.34
grams, 51.45 grams, 41.32 grams and 20.14 grams or with a total
weight of TWO HUNDRED FORTY-SEVEN POINT NINETY-EIGHT
(247.98) grams contained in six (6) transparent plastic sachets of
white crystalline substance known as "Shabu" containing
methamphetamine hydrochloride, which is a regulated drug.4

Criminal Case No. 98-164175, on the other hand, arose from an alleged
violation of Section 16, Article III of Republic Act No. 6425, as
amended,5 which was said to be committed in this manner:

That on or about April 3, 1998 in the City of Manila, Philippines, the

said accused without being authorized by law to possess or use any
regulated drug, did then and there [willfully], unlawfully and
knowingly have in his possession and under his custody and control
1.61 grams, 0.58 grams, 0.29 grams, 0.09 [grams], 0.10 grams, 0.17
grams, 0.21 grams, 0.24 grams, 0.12 grams, 0.06 grams, 0.04 grams,
[0].51 grams or all with a total weight of four point zero three grams
of white crystalline substance contained in twelve (12) transparent
plastic sachets known as "SHABU" containing methamphetamine
hydrochloride, a regulated drug, without the corresponding license or
prescription thereof.6

Initially, Criminal Case No. 98-164175 was raffled to the RTC of

Manila, Branch 23. Upon motion7 of the appellant, however, said case
was allowed to be consolidated with Criminal Case No. 98-164174 in
the RTC of Manila, Branch 41.8 On arraignment, the appellant pleaded
not guilty to both charges.9 The pre-trial conference of the cases was
held on July 27, 1998, but the same was terminated without the
parties entering into any stipulation of facts.10
During the trial of the cases, the prosecution presented the
testimonies of the following witnesses: (1) Police Inspector (P/Insp.)
Jean Fajardo,11 (2) P/Insp. Marilyn Dequito,12 and (3) Police Officer
(PO) 2 Christian Trambulo.13 Thereafter, the defense presented in
court the testimonies of: (1) the appellant Donald Vasquez y
Sandigan,14 (2) Angelina Arejado,15 and (3) Anatolia Caredo.16

The Prosecution’s Case

The prosecution’s version of the events was primarily drawn from the
testimonies of P/Insp. Fajardo and PO2 Trambulo.

P/Insp. Fajardo testified that in the morning of April 1, 1998, a

confidential informant went to their office and reported that a certain
Donald Vasquez was engaged in illegal drug activity. This alias Don
supposedly claimed that he was an employee of the National Bureau of
Investigation (NBI). According to the informant, alias Don promised
him a good commission if he (the informant) would present a
potential buyer of drugs. P/Insp. Fajardo relayed the information to
Police Superintendent (P/Supt.) Pepito Domantay, the commanding
officer of their office. P/Insp. Fajardo was then instructed to form a
team and conduct a possible buy-bust against alias Don. She formed a
team on the same day, which consisted of herself, PO2 Trambulo, PO1
Agravante, PO1 Pedrosa, PO1 Sisteno, and PO1 De la Rosa. P/Insp.
Fajardo was the team leader. With the help of the informant, she was
able to set up a meeting with alias Don. The meeting was to be held at
around 9:00 p.m. on that day at Cindy’s Restaurant located in
Welcome Rotonda. She was only supposed to meet alias Don that night
but she decided to bring the team along for security reasons. 17

At about 9:00 p.m. on even date, P/Insp. Fajardo and her team went to
the meeting place with the informant. The members of her team
positioned themselves strategically inside the restaurant. The
informant introduced P/Insp. Fajardo to alias Don as the buyer of
shabu. She asked alias Don if he was indeed an employee of the NBI
and he replied in the affirmative. They agreed to close the deal
wherein she would buy 250 grams of shabu for ₱250,000.00. They
also agreed to meet the following day at Cindy’s Restaurant around
10:00 to 11:00 p.m.18

In the evening of April 2, 1998, P/Insp. Fajardo and her team went
back to Cindy’s Restaurant. Alias Don was already waiting for her
outside the establishment when she arrived. He asked for the money
and she replied that she had the money with her. She brought five
genuine ₱500.00 bills, which were inserted on top of five bundles of
play money to make it appear that she had ₱250,000.00 with her.
After she showed the money to alias Don, he suggested that they go to
a more secure place. They agreed for the sale to take place at around
1:30 to 2:00 a.m. on April 3, 1998 in front of alias Don’s apartment at
765 Valdez St., Sampaloc, Manila. The team proceeded to the Western
Police District (WPD) Station along U.N. Avenue for coordination.
Afterwards, the team held their final briefing before they proceeded to
the target area. They agreed that the pre-arranged signal was for
P/Insp. Fajardo to scratch her hair, which would signify that the deal
had been consummated and the rest of the team would rush up to the
scene. The team then travelled to the address given by alias Don. 19

When the team arrived at the target area around 1:15 a.m. on April 3,
1998, the two vehicles they used were parked along the corner of the
street. P/Insp. Fajardo and the informant walked towards the
apartment of alias Don and stood in front of the apartment gate.
Around 1:45 a.m., alias Don came out of the apartment with a male
companion. Alias Don demanded to see the money, but P/Insp. Fajardo
told him that she wanted to see the drugs first. Alias Don gave her the
big brown envelope he was carrying and she checked the contents
thereof. Inside she found a plastic sachet, about 10x8 inches in size,
which contained white crystalline substance. After checking the
contents of the envelope, she assumed that the same was indeed
shabu. She then gave the buy-bust money to alias Don and scratched
her hair to signal the rest of the team to rush to the scene. P/Insp.
Fajardo identified herself as a narcotics agent. The two suspects tried
to flee but PO2 Trambulo was able to stop them from doing so. P/Insp.
Fajardo took custody of the shabu. When she asked alias Don if the
latter had authority to possess or sell shabu, he replied in the
negative. P/Insp. Fajardo put her initials "JSF" on the genuine
₱500.00 bills below the name of Benigno Aquino. After the arrest of
the two suspects, the buy-bust team brought them to the police
station. The suspects’ rights were read to them and they were
subsequently booked.20

P/Insp. Fajardo said that she found out that alias Don was in fact the
appellant Donald Vasquez. She learned of his name when he brought
out his NBI ID while he was being booked. P/Insp. Fajardo also
learned that the name of the appellant’s companion was Reynaldo
Siscar, who was also arrested and brought to the police station.
P/Insp. Fajardo explained that after she gave the buy-bust money to
the appellant, the latter handed the same to Siscar who was present
the entire time the sale was being consummated. Upon receiving the
buy-bust money placed inside a green plastic bag, Siscar looked at the
contents thereof and uttered "okey na to." P/Insp. Fajardo marked the
drug specimen and brought the same to the Crime Laboratory. She
was accompanied there by PO2 Trambulo and PO1 Agravante. She
handed over the drug specimen to PO1 Agravante who then turned it
over to P/Insp. Taduran, the forensic chemist on duty. The police
officers previously weighed the drug specimen. Thereafter, the
personnel at the crime laboratory weighed the specimen again.
P/Insp. Fajardo and her team waited for the results of the laboratory
examination.21

P/Insp. Fajardo further testified that the six plastic bags of shabu
seized during the buy-bust operation were actually contained in a self-
sealing plastic envelope placed inside a brown envelope. When the
brown envelope was confiscated from the appellant, she put her
initials "JSF" therein and signed it. She noticed that there were
markings on the envelope that read "DD-93-1303 re Antonio Roxas y
Sunga" but she did not bother to check out what they were for or who
made them. When she interrogated the appellant about the brown
envelope, she found out that the same was submitted as evidence to
the NBI Crime Laboratory. She also learned that the appellant worked
as a Laboratory Aide at the NBI Crime Laboratory. She identified in
court the six plastic sachets of drugs that her team recovered, which
sachets she also initialed and signed. P/Insp. Fajardo also stated that
after the appellant was arrested, PO2 Trambulo conducted a body
search on the two suspects. The search yielded 12 more plastic sachets
of drugs from the appellant. The 12 sachets were varied in sizes and
were contained in a white envelope. P/Insp. Fajardo placed her
initials and signature on the envelope. As to the 12 sachets, the same
were initialed by P/Insp. Fajardo and signed by PO2 Trambulo. 22

The testimony of PO2 Trambulo corroborated that of P/Insp. Fajardo’s.

PO2 Trambulo testified that in the morning of April 1, 1998, a
confidential informant reported to them about the illegal drug
activities of alias Don. P/Supt. Domantay then tasked P/Insp. Fajardo
to form a buy-bust team. P/Insp. Fajardo was able to set up a meeting
with alias Don at Cindy’s Restaurant in Welcome Rotonda, Quezon
City. At that meeting, PO2 Trambulo saw P/Insp. Fajardo talk to alias
Don. P/Insp. Fajardo later told the members of the team that she
convinced alias Don that she was a good buyer of shabu and the latter
demanded a second meeting to see the money. After the initial
meeting, P/Insp. Fajardo briefed P/Supt. Domantay about what
happened. PO2 Trambulo stated that on April 2, 1998, P/Insp. Fajardo
was furnished with five genuine ₱500.00 bills together with the
boodle play money. P/Insp. Fajardo placed her initials in the genuine
bills below the name "Benigno Aquino, Jr." Afterwards, the team left
the office. When they arrived at Cindy’s Restaurant past 10:00 p.m.,
alias Don was waiting outside. P/Insp. Fajardo showed the boodle
money to alias Don and after some time, they parted ways. P/Insp.
Fajardo later told the team that alias Don decided that the drug deal
would take place in front of alias Don’s rented apartment on Valdez
St., Sampaloc, Manila. After an hour, the team went to Valdez St. to
familiarize themselves with the area. They then proceeded to the WPD
station to coordinate their operation. Thereafter, P/Insp. Fajardo
conducted a final briefing wherein PO2 Trambulo was designated as
the immediate back-up arresting officer. The agreed pre-arranged
signal was for P/Insp. Fajardo to scratch her hair to indicate the
consummation of the deal. PO2 Trambulo was to signal the same to
the other members of the team.23

The buy-bust team went to the target area at around 1:30 to 2:00 a.m.
on April 3, 1998. P/Insp. Fajardo and the informant walked towards
the direction of alias Don’s apartment, while PO2 Trambulo positioned
himself near a parked jeepney about 15 to 20 meters from the
apartment gate. The rest of the team parked their vehicles at the
street perpendicular to Valdez St. Later, alias Don went out of the gate
with another person. PO2 Trambulo saw alias Don gesturing to P/Insp.
Fajardo as if asking for something but P/Insp. Fajardo gestured that
she wanted to see something first. Alias Don handed P/Insp. Fajardo a
big brown envelope, which the latter opened. P/Insp. Fajardo then
handed to alias Don a green plastic bag containing the buy-bust money
and gave the pre-arranged signal. When PO2 Trambulo saw this, he
immediately summoned the rest of the team and rushed to the
suspects. He was able to recover the buy-bust money from alias Don’s
male companion. Upon frisking alias Don, PO2 Trambulo retrieved 12
pieces of plastic sachets of suspected drugs. The same were placed
inside a white envelope that was tucked inside alias Don’s waist. PO2
Trambulo marked each of the 12 sachets with his initials "CVT" and
the date. The police officers then informed the suspects of their rights
and they proceeded to the police headquarters in Fort Bonifacio. 24

As regards the brown envelope that alias Don handed to P/Insp.

Fajardo, the latter retained possession thereof. The envelope
contained six pieces of plastic bags of white crystalline substance.
When they got back to their office, the team reported the progress of
their operation to P/Supt. Domantay. The arrested suspects were
booked and the required documentations were prepared. Among such
documents was the Request for Laboratory Examination of the drug
specimens seized. PO2 Trambulo said that he was the one who brought
the said request to the PNP Crime Laboratory, along with the drug
specimens.25

P/Insp. Marilyn Dequito, the forensic chemist, testified on the results

of her examination of the drug specimens seized in this case. She
explained that P/Insp. Macario Taduran, Jr. initially examined the
drug specimens but the latter was already assigned to another office.
The results of the examination of P/Insp. Taduran were laid down in
Physical Science Report No. D-1071-98. P/Insp. Dequito first studied
the data contained in Physical Science Report No. D-1071-98 and
retrieved the same from their office. She entered that fact in their
logbook RD-17-98. She then weighed the drug specimens and
examined the white crystalline substance from each of the plastic
sachets. She examined first the specimens marked as "A-1," "A-2," "A-
3," "A-4," "A-5" and "A-6." P/Insp. Dequito’s examination revealed
that the white crystalline substances were positive for
26
methamphetamine hydrochloride. She also examined the contents of
12 heat-sealed transparent plastic sachets that also contained
crystalline substances. The 12 plastic sachets were marked "B-1" to
"B-12." The white crystalline powder inside the 12 plastic sachets also
tested positive for methamphetamine hydrochloride. P/Insp. Dequito’s
findings were contained in Physical Science Report No. RD-17-98.27

The prosecution, thereafter, adduced the following object and

documentary evidence: (1) photocopies of the five original ₱500.00
bills28 used as buy-bust money (Exhibits A-E); (2) Request for
Laboratory Examination29 dated April 3, 1998 (Exhibit F); (3) Initial
Laboratory Report30 dated April 3, 1998, stating that the specimen
submitted for examination tested positive for methylamphetamine
hydrochloride (Exhibit G); (4) Court Order31 dated September 2, 1998
(Exhibit H); (5) Physical Sciences Report No. D-1071-9832 dated April
3, 1998 (Exhibit I); (6) Drug specimens A-1 to A-6 (Exhibits J-O); (7)
Big brown envelope (Exhibit P); (8) Small white envelope (Exhibit Q);
(9) Drug specimens B-1 to B-12 (Exhibits R-CC); (10) Physical Sciences
Report No. RD-17-9833 (Exhibit DD); (11) Joint Affidavit of
Arrest34 (Exhibit EE); (12) Play money (Exhibit FF); (13) Booking
Sheet and Arrest Report35 (Exhibit GG); (14) Request for Medical
Examination36 (Exhibit HH); (15) Medico Legal Slip37 of Donald
Vasquez (Exhibit II); and (16) Medico Legal Slip38 of Reynaldo Siscar
(Exhibit JJ).

The Defense’s Case

As expected, the defense belied the prosecution’s version of events.

The appellant’s brief39 before the Court of Appeals provides a concise
summary of the defense’s counter-statement of facts. According to the
defense:

Donald Vasquez was a regular employee of the NBI, working as a

Laboratory Aide II at the NBI Forensics Chemistry Division. His duties
at the time included being a subpoena clerk, receiving chemistry cases
as well as requests from different police agencies to have their
specimens examined by the chemist. He also rendered day and night
duties, and during regular office hours and in the absence of the
laboratory technician, he would weigh the specimens. As subpoena
clerk, he would receive subpoenas from the trial courts. When there is
no chemist, he would get a Special Order to testify, or bring the drug
specimens, to the courts.

On 1 April 1998, Donald Vasquez took his examination in Managerial

Statistics between 6:00 to 9:00 o’clock p.m. Thereafter, he took a
jeepney and alighted at Stop and Shop at Quiapo. From there, he took
a tricycle to his house, arriving at 9:45 o’clock that evening, where he
saw Reynaldo Siscar and Sonny San Diego, the latter a confidential
informant of the narcotics agents.

On 3 April 1998, at 1:45 o’clock in the morning, Donald’s household

help, Anatolia Caredo, who had just arrived from Antipolo that time,
was eating while Donald was asleep. She heard a knock on the door.
Reynaldo Siscar opened the door and thereafter two (2) men entered,
poking guns at Reynaldo. They were followed by three (3) others. The
door to Donald’s room was kicked down and they entered his room.
Donald, hearing noise, woke up to see P./Insp. Fajardo pointing a gun
at him. He saw that there were six (6) policemen searching his room,
picking up what they could get. One of them opened a cabinet and got
drug specimens in [Donald’s] possession in relation to his work as a
laboratory aide. The drugs came from two (2) cases and marked as
DD-93-1303 owned by Antonio Roxas, and DD-96-5392 owned by SPO4
Emiliano Anonas. The drug specimen contained in the envelope
marked as DD-93-1303 was intended for presentation on 3 April 1998.
Aside from the drug specimens, the policemen also took his jewelry, a
VHS player, and his wallet containing ₱2,530.00.

Angelina Arejado, Donald’s neighbor, witnessed the policemen

entering the apartment and apprehending Donald and Reynaldo from
the apartment terrace.40 (Citations omitted.)

The defense then offered the following evidence: (1) NBI Disposition
Form41 dated April 3, 1998 (Exhibit 1); (2) Sworn Statement of Idabel
Bernabe Pagulayan42 (Exhibit 2); (3) Photocopy of the buy-bust
money43 (Exhibit 3); (4) List of Hearings44 attended by Donald
Vasquez (Exhibit 4); (5) Authorization Letter45 prepared by Acting
Deputy Director Arturo A. Figueras dated March 27, 1998 (Exhibit 5);
and (6) List of Evidence46 taken by Donald Vasquez from 1996-1998
(Exhibit 6).

The Decision of the RTC

On August 6, 2009, the RTC convicted the appellant of the crimes

charged. The RTC gave more credence to the prosecution’s evidence
given that the presumption of regularity in the performance of official
duty on the part of the police officers was not overcome. The trial
court held that the appellant did not present any evidence that would
show that the police officers in this case were impelled by an evil
motive to charge him of very serious crimes and falsely testify against
him. Also, the trial court noted that the volume of the shabu involved
in this case was considerable, i.e., 247.98 grams and 4.03 grams for
illegal sale and illegal possession, respectively. To the mind of the
trial court, such fact helped to dispel the possibility that the drug
specimens seized were merely planted by the police officers.
Furthermore, the RTC ruled that the positive testimonies of the police
officers regarding the illegal drug peddling activities of the appellant
prevailed over the latter’s bare denials.

Assuming for the sake of argument that the appellant was merely
framed up by the police, the trial court pointed out that:

[T]he accused should have reported the said incident to the proper
authorities, or asked help from his Acting Chief [Idabel] Pagulayan
from the NBI to testify and identify in Court the xerox copy of the
Disposition Form which she issued to the accused and the Affidavit
dated April 17, 1998 (xerox copy) executed by her or from Mr. Arturo
A. Figueras, Acting Deputy Director, Technical Services of the NBI to
testify and identify the Letter issued by the said Acting Deputy
Director in order to corroborate and strengthen his testimony that he
was indeed authorized to keep in his custody the said shabu to be
presented or turned over to the Court as evidence, and he should have
filed the proper charges against those police officers who were
responsible for such act. But the accused did not even bother to do the
same. Further, the pieces of evidence (Disposition Form, Affidavit of
[Idabel] Pagulayan and Letter dated March 27, 1998 issued by Acting
Deputy Director) presented by the accused in Court could not be given
weight and credence considering that the said persons were not
presented in Court to identify the said documents and that the
prosecution has no opportunity to cross-examine the same, thus, it
has no probative value.47

The trial court, thus, decreed:

WHEREFORE, judgment is hereby rendered as follows:

1. In Crim. Case No. 98-164174, finding accused, DONALD

VASQUEZ y SANDIGAN @ "DON" guilty beyond reasonable doubt
of the crime of Violation of Sec. 15, Art. III in Relation to Sec.

2 (e), (f), (m), (o), Art. I of R.A. No. 6425 and hereby sentences
him to suffer the penalty of reclusion perpetua and a fine of
₱5,000,000.00; and 2. In Crim. Case No. 98-164175, judgment is
hereby rendered finding the accused, DONALD VASQUEZ y
SANDIGAN @ "DON" guilty beyond reasonable doubt of the
crime of Violation of Sec. 16, Art. III in Relation to Sec. 2 (e-2)
Art. I of R.A. 6425 as Amended by Batas Pambansa Bilang 179
and hereby sentences him to suffer the penalty of SIX (6)
MONTHS and ONE (1) DAY to FOUR (4) YEARS and a fine of
FOUR THOUSAND (₱4,000.00) PESOS.

The subject shabu (247.98 grams and 4.03 grams, respectively) are
hereby forfeited in favor of the government and the Branch Clerk of
Court is hereby directed to deliver and/or cause the delivery of the
said shabu to the Philippine Drug Enforcement Agency (PDEA), upon
the finality of this Decision.48

The Judgment of the Court of Appeals

On appeal,49 the Court of Appeals affirmed the conviction of the

appellant. The appellate court ruled that the prosecution sufficiently
proved the elements of the crimes of illegal sale and illegal possession
of shabu. The testimony of P/Insp. Fajardo on the conduct of the buy-
bust operation was found to be clear and categorical. As the appellant
failed to adduce any evidence that tended to prove any ill motive on
the part of the police officers to falsely charge the appellant, the Court
of Appeals held that the presumption of regularity in the performance
of official duties on the part of the police officers had not been
controverted in this case.

The dispositive portion of the Court of Appeals decision stated:

WHEREFORE, premises considered, the instant appeal is hereby

DENIED. The August 6, 2009 Decision of the Regional Trial Court,
Branch 41 of the City of Manila in Criminal Cases No. 98-164174-75,
finding appellant Donald Vasquez y Sandigan guilty beyond reasonable
doubt for the crimes of Violation of Section 15 and Section 16, Article
III of Republic Act No. 6425 is AFFIRMED with the MODIFICATION
that in Criminal Case No. 98-164175, appellant is hereby sentenced to
suffer the indeterminate penalty of six months of arresto mayor, as
minimum, to two years, four months and one day of prision
correccional in its medium period, as maximum.50

The Ruling of the Court

The appellant appealed his case to this Court to once again impugn his
conviction on two grounds: (1) the purported illegality of the search
and the ensuing arrest done by the police officers and (2) his
supposed authority to possess the illegal drugs seized from him.51 He
argues that the police officers did not have a search warrant or a
warrant of arrest at the time he was arrested. This occurred despite
the fact that the police officers allegedly had ample time to secure a
warrant of arrest against him. Inasmuch as his arrest was illegal, the
appellant avers that the evidence obtained as a result thereof was
inadmissible in court. As the corpus delicti of the crime was rendered
inadmissible, the appellant posits that his guilt was not proven
beyond reasonable doubt. Appellant further insists that he was able to
prove that he was authorized to keep the drug specimens in his
custody, given that he was an employee of the NBI Forensic Chemistry
Laboratory who was tasked with the duty to bring drug specimens in
court.

After an assiduous review of the evidence adduced by both parties to

this case, we resolve to deny this appeal.
At the outset, the Court rules that the appellant can no longer assail
the validity of his arrest. We reiterated in People v. Tampis 52 that
"[a]ny objection, defect or irregularity attending an arrest must be
made before the accused enters his plea on arraignment. Having failed
to move for the quashing of the information against them before their
arraignment, appellants are now estopped from questioning the
legality of their arrest. Any irregularity was cured upon their
voluntary submission to the trial court’s jurisdiction."53 Be that as it
may, the fact of the matter is that the appellant was caught in
flagrante delicto of selling illegal drugs to an undercover police officer
in a buy-bust operation. His arrest, thus, falls within the ambit of
Section 5(a), Rule 11354 of the Revised Rules on Criminal Procedure
when an arrest made without warrant is deemed lawful. Having
established the validity of the warrantless arrest in this case, the
Court holds that the warrantless seizure of the illegal drugs from the
appellant is likewise valid. We held in People v. Cabugatan55 that:

This interdiction against warrantless searches and seizures, however,

is not absolute and such warrantless searches and seizures have long
been deemed permissible by jurisprudence in instances of (1) search
of moving vehicles, (2) seizure in plain view, (3) customs searches,
(4) waiver or consented searches, (5) stop and frisk situations (Terry
search), and search incidental to a lawful arrest. The last includes a
valid warrantless arrest, for, while as a rule, an arrest is considered
legitimate [if] effected with a valid warrant of arrest, the Rules of
Court recognize permissible warrantless arrest, to wit: (1) arrest in
flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of
escaped prisoners. (Citation omitted.)

Thus, the appellant cannot seek exculpation by invoking belatedly the

invalidity of his arrest and the subsequent search upon his person.

We now rule on the substantive matters.

To secure a conviction for the crime of illegal sale of regulated or

prohibited drugs, the following elements should be satisfactorily
proven: (1) the identity of the buyer and seller, the object, and the
consideration; and (2) the delivery of the thing sold and the payment
therefor.56 As held in People v. Chua Tan Lee,57 in a prosecution of
illegal sale of drugs, "what is material is proof that the accused
peddled illicit drugs, coupled with the presentation in court of the
corpus delicti." On the other hand, the elements of illegal possession
of drugs are: (1) the accused is in possession of an item or object
which is identified to be a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously
possessed the said drug.58

In the case at bar, the testimonies of P/Insp. Fajardo and PO2

Trambulo established that a buy-bust operation was legitimately
carried out in the wee hours of April 3, 1998 to entrap the appellant.
P/Insp. Fajardo, the poseur-buyer, positively identified the appellant
as the one who sold to her six plastic bags of shabu that were
contained in a big brown envelope for the price of ₱250,000.00. She
likewise identified the six plastic bags of shabu, which contained the
markings she placed thereon after the same were seized from the
appellant. When subjected to laboratory examination, the white
crystalline powder contained in the plastic bags tested positive for
shabu. We find that P/Insp. Fajardo’s testimony on the events that
transpired during the conduct of the buy-bust operation was detailed
and straightforward. She was also consistent and unwavering in her
narration even in the face of the opposing counsel’s cross-
examination.

Apart from her description of the events that led to the exchange of
the drug specimens seized and the buy-bust money, P/Insp. Fajardo
further testified as to the recovery from the appellant of another 12
pieces of plastic sachets of shabu. After the latter was arrested,
P/Insp. Fajardo stated that PO2 Trambulo conducted a body search on
the appellant. This search resulted to the confiscation of 12 more
plastic sachets, the contents of which also tested positive for shabu.
The testimony of P/Insp. Fajardo was amply corroborated by PO2
Trambulo, whose own account dovetailed the former’s narration of
events. Both police officers also identified in court the twelve plastic
sachets of shabu that were confiscated from the appellant.

In People v. Ting Uy,59 the Court explains that "credence shall be given
to the narration of the incident by prosecution witnesses especially so
when they are police officers who are presumed to have performed
their duties in a regular manner, unless there be evidence to the
contrary." In the instant case, the appellant failed to ascribe, much
less satisfactorily prove, any improper motive on the part of the
prosecution witnesses as to why they would falsely incriminate him.
The appellant himself even testified that, not only did he not have any
misunderstanding with P/Insp. Fajardo and PO2 Trambulo prior to his
arrest, he in fact did not know them at all.60 In the absence of
evidence of such ill motive, none is presumed to exist.61
The records of this case are also silent as to any measures undertaken
by the appellant to criminally or administratively charge the police
officers herein for falsely framing him up for selling and possessing
illegal drugs. Such a move would not have been a daunting task for the
appellant under the circumstances. Being a regular employee of the
NBI, the appellant could have easily sought the help of his immediate
supervisors and/or the chief of his office to extricate him from his
predicament. Instead, what the appellant offered in evidence were
mere photocopies of documents that supposedly showed that he was
authorized to keep drug specimens in his custody. That the original
documents and the testimonies of the signatories thereof were not at
all presented in court did nothing to help the appellant’s case. To the
mind of the Court, the evidence offered by the appellant failed to
persuade amid the positive and categorical testimonies of the
arresting officers that the appellant was caught red-handed selling
and possessing a considerable amount of prohibited drugs on the night
of the buy-bust operation.

It is apropos to reiterate here that where there is no showing that the

trial court overlooked or misinterpreted some material facts or that it
gravely abused its discretion, the Court will not disturb the trial
court’s assessment of the facts and the credibility of the witnesses
since the RTC was in a better position to assess and weigh the
evidence presented during trial. Settled too is the rule that the factual
findings of the appellate court sustaining those of the trial court are
binding on this Court, unless there is a clear showing that such
findings are tainted with arbitrariness, capriciousness or palpable
error.62

On the basis of the foregoing, the Court is convinced that the

prosecution was able to establish the guilt of the appellant of the
crimes charged.

The Penalties

Anent the proper imposable penalties, Section 15 and Section 16,

Article III, in relation to Section 20(3) of Republic Act No. 6425, as
amended by Republic Act No. 7659, state:

SEC. 15. Sale, Administration, Dispensation, Delivery, Transportation

and Distribution of Regulated Drugs. - The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, dispense, deliver, transport or
distribute any regulated drug. Notwithstanding the provisions of
Section 20 of this Act to the contrary, if the victim of the offense is a
minor, or should a regulated drug involved in any offense under this
Section be the proximate cause of the death of a victim thereof, the
maximum penalty herein provided shall be imposed. SEC. 16.
Possession or Use of Regulated Drugs. - The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who shall
possess or use any regulated drug without the corresponding license
or prescription, subject to the provisions of Section 20 hereof.

SEC. 20. Application of Penalties, Confiscation and Forfeiture of the

Proceeds or Instruments of the Crime. - The penalties for offenses
under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act shall be applied if the dangerous drugs
involved is in any of the following quantities:

1. 40 grams or more of opium;

2. 40 grams or more of morphine;

3. 200 grams or more of shabu or methylamphetamine

hydrochloride;

4. 40 grams or more of heroin;

5. 750 grams or more of Indian hemp or marijuana;

6. 50 grams or more of marijuana resin or marijuana resin oil;

7. 40 grams or more of cocaine or cocaine hydrocholoride; or

8. In the case of other dangerous drugs, the quantity of which is

far beyond therapeutic requirements, as determined and
promulgated by the Dangerous Drugs Board, after public
consultations/hearings conducted for the purpose.

Otherwise, if the quantity involved is less than the foregoing

quantities, the penalty shall range from prision correccional to
reclusion perpetua depending upon the quantity. (Emphases
supplied.)
In Criminal Case No. 98-164174 involving the crime of illegal sale of
regulated drugs, the appellant was found to have sold to the poseur-
buyer in this case a total of 247.98 grams of shabu, which amount is
more than the minimum of 200 grams required by the law for the
imposition of either reclusion perpetua or, if there be aggravating
circumstances, the death penalty.

Pertinently, Article 6363 of the Revised Penal Code mandates that

when the law prescribes a penalty composed of two indivisible
penalties and there are neither mitigating nor aggravating
circumstances in the commission of the crime, the lesser penalty shall
be applied.1âwphi1 Thus, in this case, considering that no mitigating
or aggravating circumstances attended the appellant’s violation of
Section 15, Article III of Republic Act No. 6425, as amended, the Court
of Appeals correctly affirmed the trial court’s imposition of reclusion
perpetua. The ₱5,000,000.00 fine imposed by the RTC on the
appellant is also in accord with Section 15, Article III of Republic Act
No. 6425, as amended.

As to the charge of illegal possession of regulated drugs in Criminal

Case No. 98-164175, the Court of Appeals properly invoked our ruling
in People v. Tira64 in determining the proper imposable penalty.
Indeed, we held in Tira that:

Under Section 16, Article III of Rep. Act No. 6425, as amended, the
imposable penalty of possession of a regulated drug, less than 200
grams, in this case, shabu, is prision correccional to reclusion
perpetua. Based on the quantity of the regulated drug subject of the
offense, the imposable penalty shall be as follows:

QUANTITY IMPOSABLE PENALTY

Less than one (1) gram to 49.25 grams prision correccional

49.26 grams to 98.50 grams prision mayor

98.51 grams to 147.75 grams reclusion temporal

147.76 grams to 199 grams reclusion perpetua

(Emphases ours.)

Given that the additional 12 plastic sachets of shabu found in the

possession of the appellant amounted to 4.03 grams, the imposable
penalty for the crime is prision correccional. Applying the
Indeterminate Sentence Law, there being no aggravating or mitigating
circumstance in this case, the imposable penalty on the appellant
should be the indeterminate sentence of six months of arresto mayor,
as minimum, to four years and two months of prision correccional, as
maximum. The penalty imposed by the Court of Appeals, thus, falls
within the range of the proper imposable penalty. In Criminal Case
No. 98-164175, no fine is imposable considering that in Republic Act
No. 6425, as amended, a fine can be imposed as a conjunctive penalty
only if the penalty is reclusion perpetua to death.65

Incidentally, the Court notes that both parties in this case admitted
that the appellant was a regular employee of the NBI Forensics
Chemistry Division. Such fact, however, cannot be taken into
consideration to increase the penalties in this case to the maximum, in
accordance with Section 24 of Republic Act No. 6425, as
amended.66 Such a special aggravating circumstance, i.e., one that
which arises under special conditions to increase the penalty for the
offense to its maximum period,67 was not alleged and charged in the
informations. Thus, the same was properly disregarded by the lower
courts.

All told, the Court finds no reason to overturn the conviction of the
appellant.

WHEREFORE, the Court of Appeals Decision dated May 31, 2011 in CA-
G.R. CR.-H.C. No. 04201 is AFFIRMED. No costs.

SO ORDERED.

THIRD DIVISION

A.M. OCA No. 03-1800-RTJ November 26, 2004

CHIEF STATE PROSECUTOR JOVENCITO R. ZUÑO, complainant,
vs.
JUDGE ALEJADRINO C. CABEBE, Regional Trial Court, Branch 18,
Batac, Ilocos Norte, respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

The instant administrative case stemmed from the sworn

complaint1 dated January 15, 2003 of Chief State Prosecutor Jovencito
R. Zuño of the Department of Justice, against Judge Alejandrino C.
Cabebe,2 then Presiding Judge, Regional Trial Court, Branch 18, Batac,
Ilocos Norte. The charges are knowingly rendering an unjust
judgment, gross ignorance of the law and partiality.

In his complaint, Chief State Prosecutor Zuño alleged that Criminal

Case No. 3950-18 for illegal possession of prohibited or regulated
drugs was filed with the Regional Trial Court, Branch 18, Batac, Ilocos
Norte against Rey Daquep Arcangel, Victorino Gamet Malabed,
William Roxas Villanueva, all police officers, Jocelyn Malabed Manuel
and Pelagio Valencia Manuel. Upon arraignment, all the accused,
assisted by their counsel de parte, pleaded not guilty to the crime
charged. On March 14, 2001, the prosecution filed with this Court a
petition for change of venue but was denied in a Resolution dated
August 13, 2001.3 On October 8, 2001, the accused filed a motion for
reconsideration.4 In the meantime, the proceedings before
respondent's court were suspended.

On May 6, 2002, the accused filed a motion to dismiss invoking as

ground the right of the accused to a speedy trial. On November 5,
2002, respondent judge motu propio issued an Order5 granting bail to
the accused, fixing the bail for each at P70,000.00 in cash or property
bond at P120,000.00, except for accused Evelyn Manuel whose bail
was fixed at P20,000.00 in cash. Respondent judge issued the Order
without the accused's application or motion for bail.
The prosecution then filed a motion for reconsideration.6 Instead of
acting thereon, respondent judge issued an order inhibiting himself
from further proceeding with the case, realizing that what he did was
patently irregular. Complainant thus prays that respondent judge be
dismissed from the service with forfeiture of all benefits and be
disbarred from the practice of law.

In his comment,7 respondent denied the charges. While admitting that

he issued the Order dated November 5, 2002 granting bail to the
accused without any hearing, "the same was premised on the
constitutional right of the accused to a speedy trial." There was delay
in the proceedings due to complainant's frequent absences and failure
of the witnesses for the prosecution to appear in court, resulting in
the cancellation of the hearings. The prosecution did not object to the
grant of bail to the accused.8 He added that the administrative
complaint filed against him is purely harassment. It is not the
appropriate remedy to question his alleged erroneous Order.
Accordingly, and considering his forty (40) years of government
service, he prays that the administrative complaint be dismissed.

On March 26, 2003, respondent judge compulsorily retired.

In his Report dated July 7, 2003, Deputy Court Administrator Jose P.

Perez found respondent judge liable for gross ignorance of the law and
recommended that a fine of P20,000.00 be imposed upon him, with a
stern warning that a repetition of the same or similar offense will be
dealt with more severely.

In our Resolution9 dated August 25, 2003, we directed that the

complaint be re-docketed as a regular administrative matter and
required the parties to manifest whether they are submitting the case
for resolution on the basis of the pleadings filed. Both parties
submitted the required manifestations that they are submitting the
case for decision on the basis of the records.

In Docena-Caspe vs. Judge Arnulfo O. Bugtas,10 we held that

jurisprudence is replete with decisions on the procedural necessity of
a hearing, whether summary or otherwise, relative to the grant of
bail, especially in cases involving offenses punishable by death,
reclusion perpetua, or life imprisonment, where bail is a matter of
discretion. Under the present Rules, a hearing is mandatory in
granting bail whether it is a matter of right or discretion.11 It must be
stressed that the grant or the denial of bail in cases where bail is a
matter of discretion, hinges on the issue of whether or not the
evidence of guilt of the accused is strong, and the determination of
whether or not the evidence is strong is a matter of judicial discretion
which remains with the judge. In order for the latter to properly
exercise his discretion, he must first conduct a hearing to determine
whether the evidence of guilt is strong.12 In fact, even in cases where
there is no petition for bail, a hearing should still be held.13

There is no question that respondent judge granted bail to the accused

without conducting a hearing, in violation of Sections 8 and 18, Rule
114 of the Revised Rules of Criminal Procedure, quoted as follows:

"Sec. 8. Burden of proof in bail application. – At the hearing of

an application for bail filed by a person who is in custody for the
commission of an offense punishable by death, reclusion
perpetua, or life imprisonment, the prosecution has the burden
of showing that evidence of guilt is strong. The evidence
presented during the bail hearing shall be considered
automatically reproduced at the trial but, upon motion of either
party, the court may recall any witness for additional
examination unless the latter is dead, outside the Philippines, or
otherwise unable to testify."

"Sec. 18. Notice of application to prosecutor. – In the application

for bail under section 8 of this Rule, the court must give
reasonable notice of the hearing to the prosecutor or require
him to submit his recommendation. (18a)"

In Cortes vs. Catral,14 we laid down the following rules outlining

the duties of the judge in case an application for bail is filed:

1. In all cases whether bail is a matter of right or

discretion, notify the prosecutor of the hearing of the
application for bail or require him to submit his
recommendation (Section 18, Rule 114 of the Revised Rules
of Criminal Procedure);

2. Where bail is a matter of discretion, conduct a hearing

of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the
guilt of the accused is strong for the purpose of enabling
the court to exercise its sound discretion (Section 7 and 8,
id.);
 3. Decide whether the guilt of the accused is strong based
on the summary of evidence of the prosecution;

4. If the guilt of the accused is not strong, discharge the

accused upon the approval of the bail bond (Section 19,
id.); otherwise the petition should be denied.

Based on the above-cited procedure, after the hearing, the court's

order granting or refusing bail must contain a summary of the
evidence of the prosecution and based thereon, the judge should
formulate his own conclusion as to whether the evidence so presented
is strong enough to indicate the guilt of the accused.15

Respondent judge did not follow the above Rules and procedure
enumerated in Cortes.16 He did not conduct a hearing before he
granted bail to the accused, thus depriving the prosecution of an
opportunity to interpose objections to the grant of bail. Irrespective of
his opinion on the strength or weakness of evidence to prove the guilt
of the accused, he should have conducted a hearing and thereafter
made a summary of the evidence of the prosecution. The importance
of a bail hearing and a summary of evidence cannot be downplayed,
these are considered aspects of procedural due process for both the
prosecution and the defense; its absence will invalidate the grant or
denial of bail.17

Neither did respondent require the prosecution to submit its

recommendation on whether or not bail should be granted.

He maintains that the prosecution did not object to the grant of bail to
the accused, hence, he cannot be held administratively liable for not
conducting a hearing.

In Santos vs. Ofilada,18 we held that the failure to raise or the absence
of an objection on the part of the prosecution in an application for bail
does not dispense with the requirement of a bail hearing. Thus –

"Even the alleged failure of the prosecution to interpose an

objection to the granting of bail to the accused will not justify
such grant without hearing. This Court has uniformly ruled that
even if the prosecution refuses to adduce evidence or fails to
interpose any objection to the motion for bail, it is still
mandatory for the court to conduct a hearing or ask searching
and clarificatory questions from which it may infer the strength
 of the evidence of guilt, or lack of it, against the accused. Where
the prosecutor refuses to adduce evidence in opposition to the
application to grant and fix bail, the court may ask the
prosecution such questions as would ascertain the strength of
the State's evidence or judge the adequacy of the amount of bail.
Irrespective of respondent judge's opinion that the evidence of
guilt against the accused is not strong, the law and settled
jurisprudence demand that a hearing be conducted before bail
may be fixed for the temporary release of the accused, if bail is
at all justified.

Thus, although the provincial prosecutor had interposed no

objection to the grant of bail to the accused, the respondent
judge therein should nevertheless have set the petition for bail
for hearing and diligently ascertain from the prosecution
whether the latter was not in fact contesting the bail
application. In addition, a hearing was also necessary for the
court to take into consideration the guidelines set forth in the
then Section, 6, Rule 114 of the 1985 Rules of Criminal
Procedure for the fixing of the amount of the bail, Only after
respondent judge had satisfied himself that these requirements
have been met could he then proceed to rule on whether or not
to grant bail."

Clearly, therefore, respondent judge cannot seek refuge on the alleged

absence of objection on the part of the prosecution to the grant of bail
to the accused.

Respondent judge contends that the accused were entitled to their

right to a speedy trial, hence, he granted bail without a hearing. He
blames the prosecution for the delay.

Respondent's contention is bereft of merit. There is no indication in

the records of the criminal case that the prosecution has intentionally
delayed the trial of the case. Even assuming there was delay, this does
not justify the grant of bail without a hearing. This is utter disregard
of the Rules. The requirement of a bail hearing has been incessantly
stressed by this Court. In the same vein, the Code of Judicial Conduct
enjoins judges to be conversant with the law and the Rules and
maintain professional competence; and by the very nature of his
office, should be circumspect in the performance of his duties. He
must render justice without resorting to shortcuts clearly uncalled
for. Obviously, respondent failed to live up to these standards.
It bears reiterating that respondent is being charged with knowingly
rendering unjust judgment, gross ignorance of the law and partiality.
We ruled that in order to be held liable for knowingly rendering an
unjust judgment or order, respondent judge must have acted in bad
faith, with malice or in willful disregard of the right of a litigant. 19 A
perusal of the records, specifically the assailed Order, hardly shows
that any of these incidents has been proven.

On the charge of gross ignorance of the law, suffice it to say that to

constitute such infraction, it is not enough that the subject decision,
order or actuation of the judge in the performance of his official
duties is contrary to existing law and jurisprudence but, most
importantly, he must be moved by bad faith, fraud, dishonesty or
corruption. 20 In Guillermo vs. Judge Reyes, Jr.21 we categorically held
that "good faith and absence of malice, corrupt motives or improper
considerations are sufficient defenses in which a judge charged with
ignorance of the law can find refuge." In Villanueva-Fabella vs.
Lee,22 we ruled that "a judge may not be held administratively
accountable for every erroneous order he renders. For liability to
attach for ignorance of the law, the assailed order of a judge must not
only be erroneous; more important, it must be motivated by bad faith,
dishonesty, hatred or some other similar motive." Complainant,
having failed to present positive evidence to show that respondent
judge was so motivated in granting bail without hearing, can not be
held guilty of gross ignorance of the law.

As to the charge of partiality, we find no evidence to sustain the same.

It is merely based on complainant's speculation. Mere suspicion that a
judge is partial is not enough. There should be clear and convincing
evidence to prove this charge. The only exception to the rule is when
the error is so gross and patent as to produce an ineluctable inference
of bad faith and malice,23 which are not present here.

We thus find respondent judge guilty of violation of Supreme Court

Rules, specifically Rule 114 of the Revised Rules of Criminal Procedure
on the grant of bail. This administrative offense is considered a less
serious charge, punishable under Section 9(4) and Section 11(B-2),
Rule 140 of the same Rules, thus:

"Sec. 9. Less Serious Charges. – Less serious charges include:

x x x
 "4. Violation of Supreme Court Rules, directives, and circulars;

x x x

"Sec. 11. Sanctions. – x x x

"B. If the respondent is guilty of a less serious charge, any of the

following sanctions shall be imposed:

1. Suspension from office without salary and other benefits for

not less than one (1) nor more than three (3) months; or

2. A fine of more than P10,000.00 but not exceeding

P20,000.00."

WHEREFORE, respondent Judge Alejandrino C. Cabebe, now retired, is

found guilty of violation of Supreme Court Rules and is hereby fined in
the sum of Twenty Thousand Pesos (P20,000.00), the same to be
deducted from his retirement benefits.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE

REGION, represented by the Philippine Department of
Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO
MUÑOZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under Rule 65
of the 1997 Rules of Civil Procedure, as amended, seeking to nullify
the two Orders of the Regional Trial Court (RTC), Branch 8, Manila
(presided by respondent Judge Felixberto T. Olalia, Jr.) issued in Civil
Case No. 99-95773. These are: (1) the Order dated December 20, 2001
allowing Juan Antonio Muñoz, private respondent, to post bail; and (2)
the Order dated April 10, 2002 denying the motion to vacate the said
Order of December 20, 2001 filed by the Government of Hong Kong
Special Administrative Region, represented by the Philippine
Department of Justice (DOJ), petitioner. The petition alleges that both
Orders were issued by respondent judge with grave abuse of
discretion amounting to lack or excess of jurisdiction as there is no
provision in the Constitution granting bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then
British Crown Colony of Hong Kong signed an "Agreement for the
Surrender of Accused and Convicted Persons." It took effect on June
20, 1997.

On July 1, 1997, Hong Kong reverted back to the People’s Republic of

China and became the Hong Kong Special Administrative Region.

Private respondent Muñoz was charged before the Hong Kong Court
with three (3) counts of the offense of "accepting an advantage as
agent," in violation of Section 9 (1) (a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong. He also faces seven (7) counts of
the offense of conspiracy to defraud, penalized by the common law of
Hong Kong. On August 23, 1997 and October 25, 1999, warrants of
arrest were issued against him. If convicted, he faces a jail term of
seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong
Department of Justice a request for the provisional arrest of private
respondent. The DOJ then forwarded the request to the National
Bureau of Investigation (NBI) which, in turn, filed with the RTC of
Manila, Branch 19 an application for the provisional arrest of private
respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of
Arrest against private respondent. That same day, the NBI agents
arrested and detained him.
On October 14, 1999, private respondent filed with the Court of
Appeals a petition for certiorari, prohibition and mandamus with
application for preliminary mandatory injunction and/or writ
of habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision

declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for
review on certiorari, docketed as G.R. No. 140520, praying that the
Decision of the Court of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the

petition of the DOJ and sustaining the validity of the Order of Arrest
against private respondent. The Decision became final and executory
on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong

Special Administrative Region filed with the RTC of Manila a petition
for the extradition of private respondent, docketed as Civil Case No.
99-95733, raffled off to Branch 10, presided by Judge Ricardo
Bernardo, Jr. For his part, private respondent filed, in the same case,-
a petition for bail which was opposed by petitioner.

After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an

Order denying the petition for bail, holding that there is no Philippine
law granting bail in extradition cases and that private respondent is a
high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from

further hearing Civil Case No. 99-95733. It was then raffled off to
Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for

reconsideration of the Order denying his application for bail. This was
granted by respondent judge in an Order dated December 20, 2001
allowing private respondent to post bail, thus:

In conclusion, this Court will not contribute to accused’s further

erosion of civil liberties. The petition for bail is granted subject to the
following conditions:
 1. Bail is set at Php750,000.00 in cash with the condition that
accused hereby undertakes that he will appear and answer the
issues raised in these proceedings and will at all times hold
himself amenable to orders and processes of this Court, will
further appear for judgment. If accused fails in this undertaking,
the cash bond will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and

discretion of filing its own motion for hold departure order
before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors

handling this case or if they so desire to the nearest office, at
any time and day of the week; and if they further desire,
manifest before this Court to require that all the assets of
accused, real and personal, be filed with this Court soonest, with
the condition that if the accused flees from his undertaking, said
assets be forfeited in favor of the government and that the
corresponding lien/annotation be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the

above Order, but it was denied by respondent judge in his Order dated
April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court
committed grave abuse of discretion amounting to lack or excess of
jurisdiction in admitting private respondent to bail; that there is
nothing in the Constitution or statutory law providing that a potential
extraditee has a right to bail, the right being limited solely to criminal
proceedings.

In his comment on the petition, private respondent maintained that

the right to bail guaranteed under the Bill of Rights extends to a
prospective extraditee; and that extradition is a harsh process
resulting in a prolonged deprivation of one’s liberty.

Section 13, Article III of the Constitution provides that the right to bail
shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction.

Nonetheless, this is not the first time that this Court has an occasion
to resolve the question of whether a prospective extraditee may be
granted bail.

In Government of United States of America v. Hon. Guillermo G.

Purganan, Presiding Judge, RTC of Manila, Branch 42, and Mark B.
Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through
then Associate Justice Artemio V. Panganiban, later Chief Justice, held
that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:

x x x. As suggested by the use of the word "conviction," the

constitutional provision on bail quoted above, as well as Section 4,
Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does
not apply to extradition proceedings because extradition courts do not
render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption

of innocence in favor of every accused who should not be subjected to
the loss of freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt" (De la Camara v.
Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It
follows that the constitutional provision on bail will not apply to a
case like extradition, where the presumption of innocence is not at
issue.

The provision in the Constitution stating that the "right to bail shall
not be impaired even when the privilege of the writ of habeas
corpus is suspended" does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It
must be noted that the suspension of the privilege of the writ
of habeas corpus finds application "only to persons judicially charged
for rebellion or offenses inherent in or directly connected with
invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence
in the constitutional provision on bail merely emphasizes the right to
bail in criminal proceedings for the aforementioned offenses. It
cannot be taken to mean that the right is available even in extradition
proceedings that are not criminal in nature.

At first glance, the above ruling applies squarely to private

respondent’s case. However, this Court cannot ignore the following
trends in international law: (1) the growing importance of the
individual person in public international law who, in the 20th century,
has gradually attained global recognition; (2) the higher value now
being given to human rights in the international sphere; (3) the
corresponding duty of countries to observe these universal human
rights in fulfilling their treaty obligations; and (4) the duty of this
Court to balance the rights of the individual under our fundamental
law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed

on the worth of the individual person and the sanctity of human
rights. Slowly, the recognition that the individual person may
properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited
only to states was dramatically eroded towards the second half of the
past century. For one, the Nuremberg and Tokyo trials after World
War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war,
crimes against peace, and crimes against humanity. Recently, under
the Nuremberg principle, Serbian leaders have been persecuted for
war crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person
is now a valid subject of international law.

On a more positive note, also after World War II, both international
organizations and states gave recognition and importance to human
rights. Thus, on December 10, 1948, the United Nations General
Assembly adopted the Universal Declaration of Human Rights in which
the right to life, liberty and all the other fundamental rights of every
person were proclaimed. While not a treaty, the principles contained
in the said Declaration are now recognized as customarily binding
upon the members of the international community. Thus, in Mejoff
v. Director of Prisons,2 this Court, in granting bail to a prospective
deportee, held that under the Constitution,3 the principles set forth
in that Declaration are part of the law of the land. In 1966, the UN
General Assembly also adopted the International Covenant on Civil
and Political Rights which the Philippines signed and ratified.
Fundamental among the rights enshrined therein are the rights of
every person to life, liberty, and due process.

The Philippines, along with the other members of the family of

nations, committed to uphold the fundamental human rights as well as
value the worth and dignity of every person. This commitment is
enshrined in Section II, Article II of our Constitution which provides:
"The State values the dignity of every human person and guarantees
full respect for human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every person to
liberty and due process, ensuring that those detained or arrested can
participate in the proceedings before a court, to enable it to decide
without delay on the legality of the detention and order their release
if justified. In other words, the Philippine authorities are under
obligation to make available to every person under detention such
remedies which safeguard their fundamental right to liberty. These
remedies include the right to be admitted to bail. While this Court
in Purganan limited the exercise of the right to bail to criminal
proceedings, however, in light of the various international treaties
giving recognition and protection to human rights, particularly the
right to life and liberty, a reexamination of this Court’s ruling
in Purganan is in order.

First, we note that the exercise of the State’s power to deprive

an individual of his liberty is not necessarily limited to criminal
proceedings. Respondents in administrative proceedings, such
as deportation and quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close

our eyes to our jurisprudential history. Philippine jurisprudence
has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who
are not involved in criminal proceedings. In fact, bail has been
allowed in this jurisdiction to persons in detention during the
pendency of administrative proceedings, taking into cognizance
the obligation of the Philippines under international conventions
to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese

facing deportation for failure to secure the necessary certificate of
registration was granted bail pending his appeal. After noting that the
prospective deportee had committed no crime, the Court opined that
"To refuse him bail is to treat him as a person who has committed the
most serious crime known to law;" and that while deportation is not a
criminal proceeding, some of the machinery used "is the machinery of
criminal law." Thus, the provisions relating to bail was applied to
deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of

Immigration,7 this Court ruled that foreign nationals against whom no
formal criminal charges have been filed may be released on bail
pending the finality of an order of deportation. As previously stated,
the Court in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainee’s right to bail.

If bail can be granted in deportation cases, we see no justification why

it should not also be allowed in extradition cases. Likewise,
considering that the Universal Declaration of Human Rights applies to
deportation cases, there is no reason why it cannot be invoked in
extradition cases. After all, both are administrative proceedings
where the innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this

jurisdiction must be viewed in the light of the various treaty
obligations of the Philippines concerning respect for the promotion
and protection of human rights. Under these treaties, the presumption
lies in favor of human liberty. Thus, the Philippines should see to it
that the right to liberty of every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine

Extradition Law) defines "extradition" as "the removal of an accused
from the Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or government to
hold him in connection with any criminal investigation directed
against him or the execution of a penalty imposed on him under the
penal or criminal law of the requesting state or government."

Extradition has thus been characterized as the right of a foreign

power, created by treaty, to demand the surrender of one accused or
convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the demanding
state.8 It is not a criminal proceeding.9 Even if the potential extraditee
is a criminal, an extradition proceeding is not by its nature criminal,
for it is not punishment for a crime, even though such punishment
may follow extradition.10 It is sui generis, tracing its existence wholly
to treaty obligations between different nations.11 It is not a trial to
determine the guilt or innocence of the potential extraditee.12 Nor
is it a full-blown civil action, but one that is merely administrative in
character.13 Its object is to prevent the escape of a person accused or
convicted of a crime and to secure his return to the state from which
he fled, for the purpose of trial or punishment.14

But while extradition is not a criminal proceeding, it is characterized

by the following: (a) it entails a deprivation of liberty on the part of
the potential extraditee and (b) the means employed to attain the
purpose of extradition is also "the machinery of criminal
law." This is shown by Section 6 of P.D. No. 1069 (The Philippine
Extradition Law) which mandates the "immediate arrest and
temporary detention of the accused" if such "will best serve the
interest of justice." We further note that Section 20 allows the
requesting state "in case of urgency" to ask for the "provisional
arrest of the accused, pending receipt of the request for
extradition;" and that release from provisional arrest "shall not
prejudice re-arrest and extradition of the accused if a request for
extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative,

bears all earmarks of a criminal process. A potential extraditee may
be subjected to arrest, to a prolonged restraint of liberty, and
forced to transfer to the demanding state following the
proceedings. "Temporary detention" may be a necessary step in the
process of extradition, but the length of time of the detention should
be reasonable.

Records show that private respondent was arrested on September 23,

1999, and remained incarcerated until December 20, 2001, when the
trial court ordered his admission to bail. In other words, he had been
detained for over two (2) years without having been convicted of
any crime. By any standard, such an extended period of detention is a
serious deprivation of his fundamental right to liberty. In fact, it was
this prolonged deprivation of liberty which prompted the extradition
court to grant him bail.

While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from
filing a motion for bail, a right to due process under the Constitution.
The applicable standard of due process, however, should not be the
same as that in criminal proceedings. In the latter, the standard of due
process is premised on the presumption of innocence of the accused.
As Purganan correctly points out, it is from this major premise that
the ancillary presumption in favor of admitting to bail arises. Bearing
in mind the purpose of extradition proceedings, the premise behind
the issuance of the arrest warrant and the "temporary detention" is
the possibility of flight of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from justice. 15 Given the
foregoing, the prospective extraditee thus bears the onus probandi of
showing that he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the

Philippines honor its obligations under the Extradition Treaty it
entered into with the Hong Kong Special Administrative Region.
Failure to comply with these obligations is a setback in our foreign
relations and defeats the purpose of extradition. However, it does not
necessarily mean that in keeping with its treaty obligations, the
Philippines should diminish a potential extraditee’s rights to life,
liberty, and due process. More so, where these rights are guaranteed,
not only by our Constitution, but also by international conventions, to
which the Philippines is a party. We should not, therefore, deprive an
extraditee of his right to apply for bail, provided that a certain
standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof

required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative
cases cannot likewise apply given the object of extradition law which
is to prevent the prospective extraditee from fleeing our jurisdiction.
In his Separate Opinion in Purganan, then Associate Justice, now Chief
Justice Reynato S. Puno, proposed that a new standard which he
termed "clear and convincing evidence" should be used in granting
bail in extradition cases. According to him, this standard should be
lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee must prove by
"clear and convincing evidence" that he is not a flight risk and will
abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented

evidence to show that he is not a flight risk. Consequently, this case
should be remanded to the trial court to determine whether private
respondent may be granted bail on the basis of "clear and convincing
evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to

the trial court to determine whether private respondent is entitled to
bail on the basis of "clear and convincing evidence." If not, the trial
court should order the cancellation of his bail bond and his immediate
detention; and thereafter, conduct the extradition proceedings with
dispatch.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 189122 March 17, 2010

JOSE ANTONIO LEVISTE, Petitioner,

vs.
THE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

CORONA, J.:

Bail, the security given by an accused who is in the custody of the law
for his release to guarantee his appearance before any court as may be
required,1 is the answer of the criminal justice system to a vexing
question: what is to be done with the accused, whose guilt has not yet
been proven, in the "dubious interval," often years long, between
arrest and final adjudication?2 Bail acts as a reconciling mechanism to
accommodate both the accused’s interest in pretrial liberty and
society’s interest in assuring the accused’s presence at trial.3

Upon conviction by the Regional Trial Court of an offense not

punishable by death, reclusion perpetua or life imprisonment, the
accused who has been sentenced to prison must typically begin
serving time immediately unless, on application, he is admitted to
bail.4 An accused not released on bail is incarcerated before an
appellate court confirms that his conviction is legal and proper. An
erroneously convicted accused who is denied bail loses his liberty to
pay a debt to society he has never owed.5 Even if the conviction is
subsequently affirmed, however, the accused’s interest in bail pending
appeal includes freedom pending judicial review, opportunity to
efficiently prepare his case and avoidance of potential hardships of
prison.6 On the other hand, society has a compelling interest in
protecting itself by swiftly incarcerating an individual who is found
guilty beyond reasonable doubt of a crime serious enough to warrant
prison time.7 Other recognized societal interests in the denial of bail
pending appeal include the prevention of the accused’s flight from
court custody, the protection of the community from potential danger
and the avoidance of delay in punishment.8 Under what circumstances
an accused may obtain bail pending appeal, then, is a delicate balance
between the interests of society and those of the accused.9

Our rules authorize the proper courts to exercise discretion in the

grant of bail pending appeal to those convicted by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua or life
imprisonment. In the exercise of that discretion, the proper courts are
to be guided by the fundamental principle that the allowance of bail
pending appeal should be exercised not with laxity but with grave
caution and only for strong reasons, considering that the accused has
been in fact convicted by the trial court.10

The Facts

Charged with the murder of Rafael de las Alas, petitioner Jose Antonio
Leviste was convicted by the Regional Trial Court of Makati City for
the lesser crime of homicide and sentenced to suffer an indeterminate
penalty of six years and one day of prision mayor as minimum to 12
years and one day of reclusion temporal as maximum.11

He appealed his conviction to the Court of Appeals.12 Pending appeal,

he filed an urgent application for admission to bail pending appeal,
citing his advanced age and health condition, and claiming the
absence of any risk or possibility of flight on his part.

The Court of Appeals denied petitioner’s application for bail. 13 It

invoked the bedrock principle in the matter of bail pending appeal,
that the discretion to extend bail during the course of appeal should
be exercised "with grave caution and only for strong reasons." Citing
well-established jurisprudence, it ruled that bail is not a sick pass for
an ailing or aged detainee or a prisoner needing medical care outside
the prison facility. It found that petitioner

… failed to show that he suffers from ailment of such gravity that his
continued confinement during trial will permanently impair his health
or put his life in danger. x x x Notably, the physical condition of
[petitioner] does not prevent him from seeking medical attention
while confined in prison, though he clearly preferred to be attended
by his personal physician.14

For purposes of determining whether petitioner’s application for bail

could be allowed pending appeal, the Court of Appeals also considered
the fact of petitioner’s conviction. It made a preliminary evaluation of
petitioner’s case and made a prima facie determination that there was
no reason substantial enough to overturn the evidence of petitioner’s
guilt.

Petitioner’s motion for reconsideration was denied.15

Petitioner now questions as grave abuse of discretion the denial of his

application for bail, considering that none of the conditions justifying
denial of bail under the third paragraph of Section 5, Rule 114 of the
Rules of Court was present. Petitioner’s theory is that, where the
penalty imposed by the trial court is more than six years but not more
than 20 years and the circumstances mentioned in the third paragraph
of Section 5 are absent, bail must be granted to an appellant pending
appeal.

The Issue

The question presented to the Court is this: in an application for bail

pending appeal by an appellant sentenced by the trial court to a
penalty of imprisonment for more than six years, does the
discretionary nature of the grant of bail pending appeal mean that bail
should automatically be granted absent any of the circumstances
mentioned in the third paragraph of Section 5, Rule 114 of the Rules of
Court?

Section 5, Rule 114 of the Rules of Court provides:

Sec. 5. Bail, when discretionary. — Upon conviction by the Regional

Trial Court of an offense not punishable by death, reclusion perpetua,
or life imprisonment, admission to bail is discretionary. The
application for bail may be filed and acted upon by the trial court
despite the filing of a notice of appeal, provided it has not transmitted
the original record to the appellate court. However, if the decision of
the trial court convicting the accused changed the nature of the
offense from non-bailable to bailable, the application for bail can only
be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to
continue on provisional liberty during the pendency of the appeal
under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment

exceeding six (6) years, the accused shall be denied bail, or his bail
shall be cancelled upon a showing by the prosecution, with notice
to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That he has previously escaped from legal confinement,

evaded sentence, or violated the conditions of his bail
without a valid justification;

(c) That he committed the offense while under probation,

parole, or conditional pardon;

(d) That the circumstances of his case indicate the

probability of flight if released on bail; or

(e) That there is undue risk that he may commit another

crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party,

review the resolution of the Regional Trial Court after notice to the
adverse party in either case. (emphasis supplied)

Petitioner claims that, in the absence of any of the circumstances

mentioned in the third paragraph of Section 5, Rule 114 of the Rules of
Court, an application for bail by an appellant sentenced by the
Regional Trial Court to a penalty of more than six years’
imprisonment should automatically be granted.
Petitioner’s stance is contrary to fundamental considerations of
procedural and substantive rules.

Basic Procedural Concerns Forbid Grant of Petition

Petitioner filed this special civil action for certiorari under Rule 65 of
the Rules of Court to assail the denial by the Court of Appeals of his
urgent application for admission to bail pending appeal. While the
said remedy may be resorted to challenge an interlocutory order, such
remedy is proper only where the interlocutory order was rendered
without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.16

Other than the sweeping averment that "[t]he Court of Appeals

committed grave abuse of discretion in denying petitioner’s
application for bail pending appeal despite the fact that none of the
conditions to justify the denial thereof under Rule 114, Section 5 [is]
present, much less proven by the prosecution,"17 however, petitioner
actually failed to establish that the Court of Appeals indeed acted with
grave abuse of discretion. He simply relies on his claim that the Court
of Appeals should have granted bail in view of the absence of any of
the circumstances enumerated in the third paragraph of Section 5,
Rule 114 of the Rules of Court. Furthermore, petitioner asserts that
the Court of Appeals committed a grave error and prejudged the
appeal by denying his application for bail on the ground that the
evidence that he committed a capital offense was strong.

We disagree.

It cannot be said that the Court of Appeals issued the assailed

resolution without or in excess of its jurisdiction. One, pending appeal
of a conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment,
admission to bail is expressly declared to be discretionary. Two, the
discretion to allow or disallow bail pending appeal in a case such as
this where the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable is
exclusively lodged by the rules with the appellate court. Thus, the
Court of Appeals had jurisdiction to hear and resolve petitioner’s
urgent application for admission to bail pending appeal.

Neither can it be correctly claimed that the Court of Appeals

committed grave abuse of discretion when it denied petitioner’s
application for bail pending appeal. Grave abuse of discretion is not
simply an error in judgment but it is such a capricious and
whimsical exercise of judgment which is tantamount to lack of
jurisdiction.18 Ordinary abuse of discretion is insufficient. The abuse
of discretion must be grave, that is, the power is exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility.19 It must be so patent and gross as to amount to evasion of
positive duty or to a virtual refusal to perform the duty enjoined by or
to act at all in contemplation of the law. In other words, for a petition
for certiorari to prosper, there must be a clear showing of caprice and
arbitrariness in the exercise of discretion.20

Petitioner never alleged that, in denying his application for bail

pending appeal, the Court of Appeals exercised its judgment
capriciously and whimsically. No capriciousness or arbitrariness in
the exercise of discretion was ever imputed to the appellate court. Nor
could any such implication or imputation be inferred. As observed
earlier, the Court of Appeals exercised grave caution in the exercise of
its discretion. The denial of petitioner’s application for bail pending
appeal was not unreasonable but was the result of a thorough
assessment of petitioner’s claim of ill health. By making a preliminary
appraisal of the merits of the case for the purpose of granting bail, the
court also determined whether the appeal was frivolous or not, or
whether it raised a substantial question. The appellate court did not
exercise its discretion in a careless manner but followed doctrinal
rulings of this Court.

At best, petitioner only points out the Court of Appeal’s erroneous

application and interpretation of Section 5, Rule 114 of the Rules of
Court. However, the extraordinary writ of certiorari will not be issued
to cure errors in proceedings or erroneous conclusions of law or
fact.21 In this connection, Lee v. People22 is apropos:

… Certiorari may not be availed of where it is not shown that the

respondent court lacked or exceeded its jurisdiction over the case,
even if its findings are not correct. Its questioned acts would at most
constitute errors of law and not abuse of discretion correctible by
certiorari.

In other words, certiorari will issue only to correct errors of

jurisdiction and not to correct errors of procedure or mistakes in the
court’s findings and conclusions. An interlocutory order may be
assailed by certiorari or prohibition only when it is shown that the
court acted without or in excess of jurisdiction or with grave abuse of
discretion. However, this Court generally frowns upon this remedial
measure as regards interlocutory orders. To tolerate the practice of
allowing interlocutory orders to be the subject of review by certiorari
will not only delay the administration of justice but will also unduly
burden the courts.23 (emphasis supplied)

Wording of Third Paragraph of Section 5, Rule 114 Contradicts

Petitioner’s Interpretation

The third paragraph of Section 5, Rule 114 applies to two scenarios

where the penalty imposed on the appellant applying for bail is
imprisonment exceeding six years. The first scenario deals with the
circumstances enumerated in the said paragraph (namely, recidivism,
quasi-recidivism, habitual delinquency or commission of the crime
aggravated by the circumstance of reiteration; previous escape from
legal confinement, evasion of sentence or violation of the conditions
of his bail without a valid justification; commission of the offense
while under probation, parole or conditional pardon; circumstances
indicating the probability of flight if released on bail; undue risk of
committing another crime during the pendency of the appeal; or other
similar circumstances) not present. The second scenario contemplates
the existence of at least one of the said circumstances.

The implications of this distinction are discussed with erudition and

clarity in the commentary of retired Supreme Court Justice Florenz D.
Regalado, an authority in remedial law:

Under the present revised Rule 114, the availability of bail to an

accused may be summarized in the following rules:

xxx xxx xxx

e. After conviction by the Regional Trial Court wherein a penalty

of imprisonment exceeding 6 years but not more than 20 years
is imposed, and not one of the circumstances stated in Sec. 5 or
any other similar circumstance is present and proved, bail is a
matter of discretion (Sec. 5);

f. After conviction by the Regional Trial Court imposing a

penalty of imprisonment exceeding 6 years but not more than
20 years, and any of the circumstances stated in Sec. 5 or any
 other similar circumstance is present and proved, no bail shall
be granted by said court (Sec. 5); x x x24 (emphasis supplied)

Retired Court of Appeals Justice Oscar M. Herrera, another authority

in remedial law, is of the same thinking:

Bail is either a matter of right or of discretion. It is a matter of right

when the offense charged is not punishable by death, reclusion
perpetua or life imprisonment. On the other hand, upon conviction by
the Regional Trial Court of an offense not punishable death, reclusion
perpetua or life imprisonment, bail becomes a matter of discretion.

Similarly, if the court imposed a penalty of imprisonment

exceeding six (6) years then bail is a matter of discretion, except
when any of the enumerated circumstances under paragraph 3 of
Section 5, Rule 114 is present then bail shall be denied.25 (emphasis
supplied)

In the first situation, bail is a matter of sound judicial discretion. This

means that, if none of the circumstances mentioned in the third
paragraph of Section 5, Rule 114 is present, the appellate court has the
discretion to grant or deny bail. An application for bail pending appeal
may be denied even if the bail-negating26 circumstances in the third
paragraph of Section 5, Rule 114 are absent. In other words, the
appellate court’s denial of bail pending appeal where none of the said
circumstances exists does not, by and of itself, constitute abuse of
discretion.

On the other hand, in the second situation, the appellate court

exercises a more stringent discretion, that is, to carefully ascertain
whether any of the enumerated circumstances in fact exists. If it so
determines, it has no other option except to deny or revoke bail
pending appeal. Conversely, if the appellate court grants bail pending
appeal, grave abuse of discretion will thereby be committed.

Given these two distinct scenarios, therefore, any application for bail
pending appeal should be viewed from the perspective of two stages:
(1) the determination of discretion stage, where the appellate court
must determine whether any of the circumstances in the third
paragraph of Section 5, Rule 114 is present; this will establish whether
or not the appellate court will exercise sound discretion or stringent
discretion in resolving the application for bail pending appeal and (2)
the exercise of discretion stage where, assuming the appellant’s case
falls within the first scenario allowing the exercise of sound
discretion, the appellate court may consider all relevant
circumstances, other than those mentioned in the third paragraph of
Section 5, Rule 114, including the demands of equity and justice;27 on
the basis thereof, it may either allow or disallow bail.

On the other hand, if the appellant’s case falls within the second
scenario, the appellate court’s stringent discretion requires that the
exercise thereof be primarily focused on the determination of the
proof of the presence of any of the circumstances that are prejudicial
to the allowance of bail. This is so because the existence of any of
those circumstances is by itself sufficient to deny or revoke
bail. Nonetheless, a finding that none of the said circumstances is
present will not automatically result in the grant of bail. Such
finding will simply authorize the court to use the less stringent
sound discretion approach.

Petitioner disregards the fine yet substantial distinction between the

two different situations that are governed by the third paragraph of
Section 5, Rule 114. Instead, petitioner insists on a simplistic
treatment that unduly dilutes the import of the said provision and
trivializes the established policy governing the grant of bail pending
appeal.

In particular, a careful reading of petitioner’s arguments reveals that

it interprets the third paragraph of Section 5, Rule 114 to cover all
situations where the penalty imposed by the trial court on the
appellant is imprisonment exceeding six years. For petitioner, in such
a situation, the grant of bail pending appeal is always subject to
limited discretion, that is, one restricted to the determination of
whether any of the five bail-negating circumstances exists. The
implication of this position is that, if any such circumstance is
present, then bail will be denied. Otherwise, bail will be granted
pending appeal.

Petitioner’s theory therefore reduces the appellate court into a mere

fact-finding body whose authority is limited to determining whether
any of the five circumstances mentioned in the third paragraph of
Section 5, Rule 114 exists. This unduly constricts its "discretion" into
merely filling out the checklist of circumstances in the third
paragraph of Section 5, Rule 114 in all instances where the penalty
imposed by the Regional Trial Court on the appellant is imprisonment
exceeding six years. In short, petitioner’s interpretation severely
curbs the discretion of the appellate court by requiring it to determine
a singular factual issue — whether any of the five bail-negating
circumstances is present.

However, judicial discretion has been defined as "choice."28 Choice

occurs where, between "two alternatives or among a possibly infinite
number (of options)," there is "more than one possible outcome, with
the selection of the outcome left to the decision maker." 29 On the
other hand, the establishment of a clearly defined rule of action is the
end of discretion.30 Thus, by severely clipping the appellate court’s
discretion and relegating that tribunal to a mere fact-finding body in
applications for bail pending appeal in all instances where the penalty
imposed by the trial court on the appellant is imprisonment exceeding
six years, petitioner’s theory effectively renders nugatory the
provision that "upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary."

The judicial discretion granted to the proper court (the Court of

Appeals in this case) to rule on applications for bail pending appeal
must necessarily involve the exercise of judgment on the part of the
court. The court must be allowed reasonable latitude to express its
own view of the case, its appreciation of the facts and its
understanding of the applicable law on the matter.31 In view of the
grave caution required of it, the court should consider whether or not,
under all circumstances, the accused will be present to abide by his
punishment if his conviction is affirmed.32 It should also give due
regard to any other pertinent matters beyond the record of the
particular case, such as the record, character and reputation of the
applicant,33 among other things. More importantly, the discretion to
determine allowance or disallowance of bail pending appeal
necessarily includes, at the very least, an initial determination that
the appeal is not frivolous but raises a substantial question of law or
fact which must be determined by the appellate court.34 In other
words, a threshold requirement for the grant of bail is a showing that
the appeal is not pro forma and merely intended for delay but
presents a fairly debatable issue.35 This must be so; otherwise, the
appellate courts will be deluged with frivolous and time-wasting
appeals made for the purpose of taking advantage of a lenient attitude
on bail pending appeal. Even more significantly, this comports with
the very strong presumption on appeal that the lower court’s exercise
of discretionary power was sound,36 specially since the rules on
criminal procedure require that no judgment shall be reversed or
modified by the Court of Appeals except for substantial error.37

Moreover, to limit the bail-negating circumstances to the five

situations mentioned in the third paragraph of Section 5, Rule 114 is
wrong. By restricting the bail-negating circumstances to those
expressly mentioned, petitioner applies the expressio unius est
exclusio alterius38 rule in statutory construction. However, the very
language of the third paragraph of Section 5, Rule 114 contradicts the
idea that the enumeration of the five situations therein was meant to
be exclusive. The provision categorically refers to "the following or
other similar circumstances." Hence, under the rules, similarly
relevant situations other than those listed in the third paragraph of
Section 5, Rule 114 may be considered in the allowance, denial or
revocation of bail pending appeal.

Finally, laws and rules should not be interpreted in such a way that
leads to unreasonable or senseless consequences. An absurd situation
will result from adopting petitioner’s interpretation that, where the
penalty imposed by the trial court is imprisonment exceeding six
years, bail ought to be granted if none of the listed bail-negating
circumstances exists. Allowance of bail pending appeal in cases where
the penalty imposed is more than six years of imprisonment will be
more lenient than in cases where the penalty imposed does not exceed
six years. While denial or revocation of bail in cases where the
penalty imposed is more than six years’ imprisonment must be made
only if any of the five bail-negating conditions is present, bail pending
appeal in cases where the penalty imposed does not exceed six years
imprisonment may be denied even without those conditions.

Is it reasonable and in conformity with the dictates of justice that bail

pending appeal be more accessible to those convicted of serious
offenses, compared to those convicted of less serious crimes?

Petitioner’s Theory Deviates from History And Evolution of Rule

on Bail Pending Appeal

Petitioner’s interpretation deviates from, even radically alters, the

history and evolution of the provisions on bail pending appeal.

The relevant original provisions on bail were provided under Sections

3 to 6, Rule 110 of the 1940 Rules of Criminal Procedure:
 Sec. 3. Offenses less than capital before conviction by the Court
of First Instance. — After judgment by a municipal judge and
before conviction by the Court of First Instance, the defendant
shall be admitted to bail as of right.

Sec. 4. Non-capital offenses after conviction by the Court of

First Instance. — After conviction by the Court of First Instance,
defendant may, upon application, be bailed at the discretion of
the court.

Sec. 5. Capital offense defined. — A capital offense, as the term

is used in this rule, is an offense which, under the law existing
at the time of its commission, and at the time of the application
to be admitted to bail, may be punished by death.

Sec. 6. Capital offense not bailable. — No person in custody for

the commission of a capital offense shall be admitted to bail if
the evidence of his guilt is strong.

The aforementioned provisions were reproduced as Sections 3 to 6,

Rule 114 of the 1964 Rules of Criminal Procedure and then of the 1985
Rules of Criminal Procedure. They were modified in 1988 to read as
follows:

Sec. 3. Bail, a matter of right; exception. — All persons in

custody, shall before final conviction be entitled to bail as a
matter of right, except those charged with a capital offense or
an offense which, under the law at the time of its commission
and at the time of the application for bail, is punishable by
reclusion perpetua, when evidence of guilt is strong.

Sec. 4. Capital offense, defined. — A capital offense, as the term

is used in this Rules, is an offense which, under the law existing
at the time of its commission, and at the time of the application
to be admitted to bail, may be punished by death. (emphasis
supplied)

The significance of the above changes was clarified in Administrative

Circular No. 2-92 dated January 20, 1992 as follows:

The basic governing principle on the right of the accused to bail is laid
down in Section 3 of Rule 114 of the 1985 Rules on Criminal
Procedure, as amended, which provides:
Sec. 3. Bail, a matter of right; exception. — All persons in custody,
shall before final conviction, be entitled to bail as a matter of right,
except those charged with a capital offense or an offense which, under
the law at the time of its commission and at the time of the
application for bail, is punishable by reclusion perpetua, when
evidence of guilt is strong.

Pursuant to the aforecited provision, an accused who is charged with a

capital offense or an offense punishable by reclusion perpetua, shall
no longer be entitled to bail as a matter of right even if he appeals the
case to this Court since his conviction clearly imports that the
evidence of his guilt of the offense charged is strong.

Hence, for the guidelines of the bench and bar with respect to future
as well as pending cases before the trial courts, this Court en banc
lays down the following policies concerning the effectivity of the bail
of the accused, to wit:

1) When an accused is charged with an offense which under the

law existing at the time of its commission and at the time of the
application for bail is punishable by a penalty lower than
reclusion perpetua and is out on bail, and after trial is convicted
by the trial court of the offense charged or of a lesser offense
than that charged in the complaint or information, he may be
allowed to remain free on his original bail pending the
resolution of his appeal, unless the proper court directs
otherwise pursuant to Rule 114, Sec. 2 (a) of the Rules of Court,
as amended;

2) When an accused is charged with a capital offense or an

offense which under the law at the time of its commission and
at the time of the application for bail is punishable by reclusion
perpetua and is out on bail, and after trial is convicted by the
trial court of a lesser offense than that charged in the complaint
or information, the same rule set forth in the preceding
paragraph shall be applied;

3) When an accused is charged with a capital offense or an

offense which under the law at the time of its commission and
at the time of the application for bail is punishable by reclusion
perpetua and is out on bail and after trial is convicted by the
trial court of the offense charged, his bond shall be cancelled
 and the accused shall be placed in confinement pending
resolution of his appeal.

As to criminal cases covered under the third rule abovecited, which

are now pending appeal before his Court where the accused is still on
provisional liberty, the following rules are laid down:

1) This Court shall order the bondsman to surrender the accused

within ten (10) days from notice to the court of origin. The
bondsman thereupon, shall inform this Court of the fact of
surrender, after which, the cancellation of the bond shall be
ordered by this Court;

2) The RTC shall order the transmittal of the accused to the

National Bureau of Prisons thru the Philippine National Police as
the accused shall remain under confinement pending resolution
of his appeal;

3) If the accused-appellant is not surrendered within the

aforesaid period of ten (10) days, his bond shall be forfeited and
an order of arrest shall be issued by this Court. The appeal taken
by the accused shall also be dismissed under Section 8, Rule 124
of the Revised Rules of Court as he shall be deemed to have
jumped his bail. (emphasis supplied)

Amendments were further introduced in Administrative Circular No.

12-94 dated August 16, 1994 which brought about important changes
in the said rules as follows:

SECTION 4. Bail, a matter of right. — All persons in custody shall: (a)

before or after conviction by the Metropolitan Trial Court, Municipal
Trial Court, Municipal Trial Court in Cities and Municipal Circuit Trial
Court, and (b) before conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua or life
imprisonment, be admitted to bail as a matter of right, with sufficient
sureties, or be released on recognizance as prescribed by law of this
Rule. (3a)

SECTION 5. Bail, when discretionary. — Upon conviction by the

Regional Trial Court of an offense not punishable by death, reclusion
perpetua or life imprisonment, the court, on application, may admit
the accused to bail.
The court, in its discretion, may allow the accused to continue on
provisional liberty under the same bail bond during the period of
appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6)

years but not more than twenty (20) years, the accused shall be
denied bail, or his bail previously granted shall be cancelled, upon a
showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That the accused is found to have previously escaped from

legal confinement, evaded sentence or has violated the
conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation,

parole, under conditional pardon;

(d) That the circumstances of the accused or his case indicate

the probability of flight if released on bail; or

(e) That there is undue risk that during the pendency of the
appeal, the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial
Court, on motion and with notice to the adverse party. (n)

SECTION 6. Capital offense, defined. — A capital offense, as the term

is used in these Rules, is an offense which, under the law existing at
the time of its commission and at the time of the application to be
admitted to bail, maybe punished with death. (4)

SECTION 7. Capital offense or an offense punishable by reclusion

perpetua or life imprisonment, not bailable. — No person charged with
a capital offense, or an offense punishable by reclusion perpetua or
life imprisonment, when evidence of guilt is strong, shall be admitted
to bail regardless of the stage of the criminal prosecution. (emphasis
supplied)
The above amendments of Administrative Circular No. 12-94 to Rule
114 were thereafter amended by A.M. No. 00-5-03-SC to read as they
do now.

The development over time of these rules reveals an orientation

towards a more restrictive approach to bail pending appeal. It
indicates a faithful adherence to the bedrock principle, that is, bail
pending appeal should be allowed not with leniency but with grave
caution and only for strong reasons.

The earliest rules on the matter made all grants of bail after
conviction for a non-capital offense by the Court of First Instance
(predecessor of the Regional Trial Court) discretionary. The 1988
amendments made applications for bail pending appeal favorable to
the appellant-applicant. Bail before final conviction in trial courts for
non-capital offenses or offenses not punishable by reclusion perpetua
was a matter of right, meaning, admission to bail was a matter of
right at any stage of the action where the charge was not for a capital
offense or was not punished by reclusion perpetua.39

The amendments introduced by Administrative Circular No. 12-94

made bail pending appeal (of a conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua or life
imprisonment) discretionary. Thus, Administrative Circular No. 12-94
laid down more stringent rules on the matter of post-conviction grant
of bail.

A.M. No. 00-5-03-SC modified Administrative Circular No. 12-94 by

clearly identifying which court has authority to act on applications for
bail pending appeal under certain conditions and in particular
situations. More importantly, it reiterated the "tough on bail pending
appeal" configuration of Administrative Circular No. 12-94. In
particular, it amended Section 3 of the 1988 Rules on Criminal
Procedure which entitled the accused to bail as a matter of right
before final conviction.40 Under the present rule, bail is a matter of
discretion upon conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua or life imprisonment.
Indeed, pursuant to the "tough on bail pending appeal" policy, the
presence of bail-negating conditions mandates the denial or
revocation of bail pending appeal such that those circumstances are
deemed to be as grave as conviction by the trial court for an offense
punishable by death, reclusion perpetua or life imprisonment where
bail is prohibited.
Now, what is more in consonance with a stringent standards approach
to bail pending appeal? What is more in conformity with an ex
abundante cautelam view of bail pending appeal? Is it a rule which
favors the automatic grant of bail in the absence of any of the
circumstances under the third paragraph of Section 5, Rule 114? Or is
it a rule that authorizes the denial of bail after due consideration of
all relevant circumstances, even if none of the circumstances under
the third paragraph of Section 5, Rule 114 is present?

The present inclination of the rules on criminal procedure to frown on

bail pending appeal parallels the approach adopted in the United
States where our original constitutional and procedural provisions on
bail emanated.41 While this is of course not to be followed blindly, it
nonetheless shows that our treatment of bail pending appeal is no
different from that in other democratic societies.

In our jurisdiction, the trend towards a strict attitude towards the

allowance of bail pending appeal is anchored on the principle that
judicial discretion — particularly with respect to extending bail —
should be exercised not with laxity but with caution and only for
strong reasons.42 In fact, it has even been pointed out that "grave
caution that must attend the exercise of judicial discretion in granting
bail to a convicted accused is best illustrated and exemplified in
Administrative Circular No. 12-94 amending Rule 114, Section 5."43

Furthermore, this Court has been guided by the following:

The importance attached to conviction is due to the underlying

principle that bail should be granted only where it is uncertain
whether the accused is guilty or innocent, and therefore, where that
uncertainty is removed by conviction it would, generally speaking, be
absurd to admit to bail. After a person has been tried and convicted
the presumption of innocence which may be relied upon in prior
applications is rebutted, and the burden is upon the accused to show
error in the conviction. From another point of view it may be properly
argued that the probability of ultimate punishment is so enhanced by
the conviction that the accused is much more likely to attempt to
escape if liberated on bail than before conviction.44 (emphasis
supplied)

As a matter of fact, endorsing the reasoning quoted above and relying

thereon, the Court declared in Yap v. Court of Appeals45 (promulgated
in 2001 when the present rules were already effective), that denial of
bail pending appeal is "a matter of wise discretion."

A Final Word

Section 13, Article II of the Constitution provides:

SEC. 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. x x x (emphasis
supplied)1avvphi1

After conviction by the trial court, the presumption of innocence

terminates and, accordingly, the constitutional right to bail
ends.46 From then on, the grant of bail is subject to judicial discretion.
At the risk of being repetitious, such discretion must be exercised with
grave caution and only for strong reasons. Considering that the
accused was in fact convicted by the trial court, allowance of bail
pending appeal should be guided by a stringent-standards approach.
This judicial disposition finds strong support in the history and
evolution of the rules on bail and the language of Section 5, Rule 114
of the Rules of Court. It is likewise consistent with the trial court’s
initial determination that the accused should be in prison.
Furthermore, letting the accused out on bail despite his conviction
may destroy the deterrent effect of our criminal laws. This is
especially germane to bail pending appeal because long delays often
separate sentencing in the trial court and appellate review. In
addition, at the post-conviction stage, the accused faces a certain
prison sentence and thus may be more likely to flee regardless of bail
bonds or other release conditions. Finally, permitting bail too freely in
spite of conviction invites frivolous and time-wasting appeals which
will make a mockery of our criminal justice system and court
processes.

WHEREFORE, the petition is hereby DISMISSED.

The Court of Appeals is hereby directed to resolve and decide, on the

merits, the appeal of petitioner Jose Antonio Leviste docketed as CA-
G.R. CR No. 32159, with dispatch.

Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 213847 August 18, 2015

JUAN PONCE ENRILE, Petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

BERSAMIN, J.:

The decision whether to detain or release an accused before and

during trial is ultimately an incident of the judicial power to hear and
determine his criminal case. The strength of the Prosecution's case,
albeit a good measure of the accused’s propensity for flight or for
causing harm to the public, is subsidiary to the primary objective of
bail, which is to ensure that the accused appears at trial.1

The Case

Before the Court is the petition for certiorari filed by Senator Juan
Ponce Enrile to assail and annul the resolutions dated July 14,
20142 and August 8, 20143 issued by the Sandiganbayan (Third
Division) in Case No. SB-14-CRM-0238, where he has been charged
with plunder along with several others. Enrile insists that the
resolutions, which respectively denied his Motion To Fix Bail and his
Motion For Reconsideration, were issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.

Antecedents

On June 5, 2014, the Office of the Ombudsman charged Enrile and

several others with plunder in the Sandiganbayan on the basis of their
purported involvement in the diversion and misuse of appropriations
under the Priority Development Assistance Fund (PDAF). 4 On June 10,
2014 and June 16, 2014, Enrile respectively filed his Omnibus
Motion5 and Supplemental Opposition,6 praying, among others, that he
be allowed to post bail should probable cause be found against him.
The motions were heard by the Sandiganbayan after the Prosecution
filed its Consolidated Opposition.7

On July 3, 2014, the Sandiganbaya n issued its resolution denying

Enrile’s motion, particularly on the matter of bail, on the ground of its
prematurity considering that Enrile had not yet then voluntarily
surrendered or been placed under the custody of the
law.8 Accordingly, the Sandiganbayan ordered the arrest of Enrile.9

On the same day that the warrant for his arrest was issued, Enrile
voluntarily surrendered to Director Benjamin Magalong of the
Criminal Investigation and Detection Group (CIDG) in Camp Crame,
Quezon City, and was later on confined at the Philippine National
Police (PNP) General Hospital following his medical examination.10

Thereafter, Enrile filed his Motion for Detention at the PNP General
Hospital ,11 and his Motion to Fix Bail ,12 both dated July 7, 2014,
which were heard by the Sandiganbayan on July 8, 2014.13 In support
of the motions, Enrile argued that he should be allowed to post bail
because: (a) the Prosecution had not yet established that the evidence
of his guilt was strong; (b) although he was charged with plunder, the
penalty as to him would only be reclusion temporal , not reclusion
perpetua ; and (c) he was not a flight risk, and his age and physical
condition must further be seriously considered.

On July 14, 2014, the Sandiganbayan issued its first assailed resolution
denying Enrile’s Motion to Fix Bail, disposing thusly:

x x x [I]t is only after the prosecution shall have presented its

evidence and the Court shall have made a determination that the
evidence of guilt is not strong against accused Enrile can he demand
bail as a matter of right. Then and only then will the Court be duty-
bound to fix the amount of his bail.

To be sure, no such determination has been made by the Court. In fact,

accused Enrile has not filed an application for bail. Necessarily, no
bail hearing can even commence. It is thus exceedingly premature for
accused Enrile to ask the Court to fix his bail.
Accused Enrile next argues that the Court should grant him bail
because while he is charged with plunder, "the maximum penalty that
may be possibly imposed on him is reclusion temporal, not reclusion
perpetua." He anchors this claim on Section 2 of R.A. No. 7080, as
amended, and on the allegation that he is over seventy (70) years old
and that he voluntarily surrendered. "Accordingly, it may be said that
the crime charged against Enrile is not punishable by reclusion
perpetua, and thus bailable."

The argument has no merit.

x x x [F]or purposes of bail, the presence of mitigating circumstance/s

is not taken into consideration. These circumstances will only be
appreciated in the imposition of the proper penalty after trial should
the accused be found guilty of the offense charged. x x x

Lastly, accused Enrile asserts that the Court should already fix his bail
because he is not a flight risk and his physical condition must also be
seriously considered by the Court.

Admittedly, the accused’s age, physical condition and his being a flight
risk are among the factors that are considered in fixing a reasonable
amount of bail. However, as explained above, it is premature for the
Court to fix the amount of bail without an anterior showing that the
evidence of guilt against accused Enrile is not strong.

WHEREFORE, premises considered, accused Juan Ponce Enrile’s

Motion to Fix Bail dated July 7, 2014 is DENIED for lack of merit.

SO ORDERED.14

On August 8, 2014, the Sandiganbayan issued it s second assailed

resolution to deny Enrile’s motion for reconsideration filed vis-à-vis
the July 14, 2014 resolution.15

Enrile raises the following grounds in support of his petition for

certiorari , namely:

A. Before judgment of the Sandiganbayan, Enrile is bailable

as a matter of right. Enrile may be deemed to fall within the
exception only upon concurrence of two (2) circumstances:
(i) where the offense is punishable by reclusion perpetua,
and (ii) when evidence of guilt is strong.
 B. The prosecution failed to show clearly and conclusively
that Enrile, if ever he would be convicted, is punishable by
reclusion perpetua; hence, Enrile is entitled to bail as a
matter of right.

C. The prosecution failed to show clearly and conclusively

that evidence of Enrile’s guilt (if ever) is strong; hence,
Enrile is entitled to bail as a matter of right.

D. At any rate, Enrile may be bailable as he is not a flight

risk.16

Enrile claims that before judgment of conviction, an accused is

entitled to bail as matter of right; th at it is the duty and burden of the
Prosecution to show clearly and conclusively that Enrile comes under
the exception and cannot be excluded from enjoying the right to bail;
that the Prosecution has failed to establish that Enrile, if convicted of
plunder, is punishable by reclusion perpetua considering the presence
of two mitigating circumstances – his age and his voluntary
surrender; that the Prosecution has not come forward with proof
showing that his guilt for the crime of plunder is strong; and that he
should not be considered a flight risk taking into account that he is
already over the age of 90, his medical condition, and his social
standing.

In its Comment ,17 the Ombudsman contends that Enrile’s right to bail
is discretionary as he is charged with a capital offense; that to be
granted bail, it is mandatory that a bail hearing be conducted to
determine whether there is strong evidence of his guilt, or the lack of
it; and that entitlement to bail considers the imposable penalty,
regardless of the attendant circumstances.

Ruling of the Court

The petition for certiorari is meritorious.

1.
Bail protects the right of the accused to
due process and to be presumed innocent

In all criminal prosecutions, the accused shall be presumed innocent

until the contrary is proved.18 The presumption of innocence is rooted
in the guarantee of due process, and is safeguarded by the
constitutional right to be released on bail,19 and further binds the
court to wait until after trial to impose any punishment on the
accused.20

It is worthy to note that bail is not granted to prevent the accused

from committing additional crimes.[[21] The purpose of bail is to
guarantee the appearance of the accused at the trial, or whenever so
required by the trial court. The amount of bail should be high enough
to assure the presence of the accused when so required, but it should
be no higher than is reasonably calculated to fulfill this
purpose.22 Thus, bail acts as a reconciling mechanism to accommodate
both the accused’s interest in his provisional liberty before or during
the trial, and the society’s interest in assuring the accused’s presence
at trial.23

2.
Bail may be granted as a
matter of right or of discretion

The right to bail is expressly afforded by Section 13, Article III (Bill of
Rights) of the Constitution, viz.:

x x x All persons, except those charged with offenses punishable by

reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

This constitutional provision is repeated in Section 7, Rule 114 24 of the

Rules of Court , as follows:

Section 7. Capital offense or an offense punishable by reclusion

perpetua or life imprisonment, not bailable. — No person charged with
a capital offense, or an offense punishable by reclusion perpetua or
life imprisonment, shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal prosecution.

A capital offense in the context of the rule refers to an offense that,

under the law existing at the time of its commission and the
application for admission to bail, may be punished with death.25
The general rule is, therefore, that any person, before being convicted
of any criminal offense, shall be bailable, unless he is charged with a
capital offense, or with an offense punishable with reclusion perpetua
or life imprisonment, and the evidence of his guilt is strong. Hence,
from the moment he is placed under arrest, or is detained or
restrained by the officers of the law, he can claim the guarantee of his
provisional liberty under the Bill of Rights, and he retains his right to
bail unless he is charged with a capital offense, or with an offense
punishable with reclusion perpetua or life imprisonment, and the
evidence of his guilt is strong.26 Once it has been established that the
evidence of guilt is strong, no right to bail shall be recognized.27

As a result, all criminal cases within the competence of the

Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court
in Cities, or Municipal Circuit Trial Court are bailable as matter of
right because these courts have no jurisdiction to try capital offenses,
or offenses punishable with reclusion perpetua or life imprisonment.
Likewise, bail is a matter of right prior to conviction by the Regional
Trial Court (RTC) for any offense not punishable by death, reclusion
perpetua , or life imprisonment, or even prior to conviction for an
offense punishable by death, reclusion perpetua , or life imprisonment
when evidence of guilt is not strong.28

On the other hand, the granting of bail is discretionary: (1) upon

conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment;29 or (2) if the RTC has imposed a
penalty of imprisonment exceeding six years, provided none of the
circumstances enumerated under paragraph 3 of Section 5, Rule 114 is
present, as follows:

(a) That he is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That he has previously escaped from legal confinement,

evaded sentence, or violated the conditions of his bail without
valid justification;

(c) That he committed the offense while under probation,

parole, or conditional pardon;

(d) That the circumstances of hi s case indicate the probability

of flight if released on bail; or
 (e) That there is undue risk that he may commit another crime
during the pendency of the appeal.

3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion

For purposes of admission to bail, the determination of whether or not

evidence of guilt is strong in criminal cases involving capital offenses,
or offenses punishable with reclusion perpetua or life imprisonment
lies within the discretion of the trial court. But, as the Court has held
in Concerned Citizens v. Elma ,30 "such discretion may be exercised
only after the hearing called to ascertain the degree of guilt of the
accused for the purpose of whether or not he should be granted
provisional liberty." It is axiomatic, therefore, that bail cannot be
allowed when its grant is a matter of discretion on the part of the trial
court unless there has been a hearing with notice to the
Prosecution.31 The indispensability of the hearing with notice has been
aptly explained in Aguirre v. Belmonte, viz. :32

x x x Even before its pronouncement in the Lim case, this Court

already ruled in People vs. Dacudao, etc., et al. that a hearing is
mandatory before bail can be granted to an accused who is charged
with a capital offense, in this wise:

The respondent court acted irregularly in granting bail in a murder

case without any hearing on the motion asking for it, without
bothering to ask the prosecution for its conformity or comment, as it
turned out later, over its strong objections. The court granted bail on
the sole basis of the complaint and the affidavits of three policemen,
not one of whom apparently witnessed the killing. Whatever the court
possessed at the time it issued the questioned ruling was intended
only for prima facie determining whether or not there is sufficient
ground to engender a well-founded belief that the crime was
committed and pinpointing the persons who probably committed it.
Whether or not the evidence of guilt is strong for each individual
accused still has to be established unless the prosecution submits the
issue on whatever it has already presented. To appreciate the strength
or weakness of the evidence of guilt, the prosecution must be
consulted or heard. It is equally entitled as the accused to due process.
Certain guidelines in the fixing of a bailbond call for the presentation
of evidence and reasonable opportunity for the prosecution to refute
it. Among them are the nature and circumstances of the crime,
character and reputation of the accused, the weight of the evidence
against him, the probability of the accused appearing at the trial,
whether or not the accused is a fugitive from justice, and whether or
not the accused is under bond in other cases. (Section 6, Rule 114,
Rules of Court) It is highly doubtful if the trial court can appreciate
these guidelines in an ex-parte determination where the Fiscal is
neither present nor heard.

The hearing, which may be either summary or otherwise, in the

discretion of the court, should primarily determine whether or not the
evidence of guilt against the accused is strong. For this purpose, a
summary hearing means:

x x x such brief and speedy method of receiving and considering the

evidence of guilt as is practicable and consistent with the purpose of
hearing which is merely to determine the weight of evidence for
purposes of bail. On such hearing, the court does not sit to try the
merits or to enter into any nice inquiry as to the weight that ought to
be allowed to the evidence for or against the accused, nor will it
speculate on the outcome of the trial or on what further evidence may
be therein offered or admitted. The course of inquiry may be left to
the discretion of the court which may confine itself to receiving such
evidence as has reference to substantial matters, avoiding
unnecessary thoroughness in the examination and cross
examination.33

In resolving bail applications of the accused who is charged with a

capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, the trial judge is expected to comply with the
guidelines outlined in Cortes v. Catral,34 to wit:

1. In all cases, whether bail is a matter of right or of discretion,

notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation (Section 18, Rule 114
of the Rules of Court, as amended);

2. Where bail is a matter of discretion, conduct a hearing of the

application for bail regardless of whether or not the prosecution
refuses to present evidence to show that the guilt of the accused
 is strong for the purpose of enabling the court to exercise its
sound discretion; (Section 7 and 8, supra)

3. Decide whether the guilt of the accused is strong based on the

summary of evidence of the prosecution;

4. If the guilt of the accused is no t strong, discharge the accused

upon the approval of the bailbond (Section 19, supra) Otherwise
petition should be denied.

3.
Enrile’s poor health justifies his admission to bail

We first note that Enrile has averred in his Motion to Fix Bail the
presence of two mitigating circumstances that should be appreciated
in his favor, namely: that he was already over 70 years at the time of
the alleged commission of the offense, and that he voluntarily
surrendered.35

Enrile’s averment has been mainly uncontested by the Prosecution,

whose Opposition to the Motion to Fix Bail has only argued that –

8. As regards the assertion that the maximum possible penalty that

might be imposed upon Enrile is only reclusion temporal due to the
presence of two mitigating circumstances, suffice it to state that the
presence or absence of mitigating circumstances is also not
consideration that the Constitution deemed worthy. The relevant
clause in Section 13 is "charged with an offense punishable by." It is,
therefore, the maximum penalty provided by the offense that has
bearing and not the possibility of mitigating circumstances being
appreciated in the accused’s favor.36

Yet, we do not determine now the question of whether or not Enrile’s

averment on the presence of the two mitigating circumstances could
entitle him to bail despite the crime alleged against him being
punishable with reclusion perpetua ,37 simply because the
determination, being primarily factual in context, is ideally to be
made by the trial court.

Nonetheless, in now granting Enrile’s petition for certiorari, the Court

is guided by the earlier mentioned principal purpose of bail, which is
to guarantee the appearance of the accused at the trial, or whenever
so required by the court. The Court is further mindful of the
Philippines’ responsibility in the international community arising
from the national commitment under the Universal Declaration of
Human Rights to:

x x x uphold the fundamental human rights as well as value the worth

and dignity of every person. This commitment is enshrined in Section
II, Article II of our Constitution which provides: "The State values the
dignity of every human person and guarantees full respect for human
rights." The Philippines, therefore, has the responsibility of protecting
and promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the
proceedings before a court, to enable it to decide without delay on the
legality of the detention and order their release if justified. In other
words, the Philippine authorities are under obligation to make
available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include
the right to be admitted to bail.38

This national commitment to uphold the fundamental human rights as

well as value the worth and dignity of every person has authorized the
grant of bail not only to those charged in criminal proceedings but
also to extraditees upon a clear and convincing showing: (1 ) that the
detainee will not be a flight risk or a danger to the community; and (2
) that there exist special, humanitarian and compelling
circumstances.39

In our view, his social and political standing and his having
immediately surrendered to the authorities upon his being charged in
court indicate that the risk of his flight or escape from this
jurisdiction is highly unlikely. His personal disposition from the onset
of his indictment for plunder, formal or otherwise, has demonstrated
his utter respect for the legal processes of this country. We also do not
ignore that at an earlier time many years ago when he had been
charged with rebellion with murder and multiple frustrated murder,
he already evinced a similar personal disposition of respect for the
legal processes, and was granted bail during the pendency of his trial
because he was not seen as a flight risk.40 With his solid reputation in
both his public and his private lives, his long years of public service,
and history’s judgment of him being at stake, he should be granted
bail.
The currently fragile state of Enrile’s health presents another
compelling justification for his admission to bail, but which the
Sandiganbayan did not recognize.

In his testimony in the Sandiganbayan,41 Dr. Jose C. Gonzales, the

Director of the Philippine General Hospital (PGH), classified Enrile as
a geriatric patient who was found during the medical examinations
conducted at the UP-PGH to be suffering from the following
conditions:

(1) Chronic Hypertension with fluctuating blood pressure levels

on multiple drug therapy; (Annexes 1.1, 1.2, 1.3);

(2) Diffuse atherosclerotic cardiovascular disease composed of

the following :

a. Previous history of cerebrovascular disease with carotid

and vertebral artery disease ; (Annexes 1.4, 4.1)

b. Heavy coronary artery calcifications; (Annex 1.5)

c. Ankle Brachial Index suggestive of arterial

calcifications. (Annex 1.6)

(3) Atrial and Ventricular Arrhythmia (irregular heart beat)

documented by Holter monitoring ; (Annexes 1.7.1, 1.7.2)

(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip

syndrome; (Annexes 2.1, 2.2)

(5) Ophthalmology:

a. Age-related mascular degeneration, neovascular s/p

laser of the Retina, s/p Lucentis intra-ocular injections;
(Annexes 3.0, 3.1, 3.2)

b. S/p Cataract surgery with posterior chamber

intraocular lens. (Annexes 3.1, 3.2)

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

b. High cholesterol levels/dyslipidemia;

 c. Alpha thalassemia;

d. Gait/balance disorder;

e. Upper gastrointestinal bleeding (etiology uncertain) in

2014;

f. Benign prostatic hypertrophy (with documented

enlarged prostate on recent ultrasound).42

Dr. Gonzales attested that the following medical conditions, singly or

collectively, could pose significant risk s to the life of Enrile, to wit:
(1) uncontrolled hypertension, because it could lead to brain or heart
complications, including recurrence of stroke; (2) arrhythmia,
because it could lead to fatal or non-fatal cardiovascular events,
especially under stressful conditions; (3) coronary calcifications
associated with coronary artery disease, because they could indicate a
future risk for heart attack under stressful conditions; and (4)
exacerbations of ACOS, because they could be triggered by certain
circumstances (like excessive heat, humidity, dust or allergen
exposure) which could cause a deterioration in patients with asthma
or COPD.43

Based on foregoing, there is no question at all that Enrile’s advanced

age and ill health required special medical attention. His confinement
at the PNP General Hospital, albeit at his own instance,44 was not even
recommended by the officer-in-charge (O IC) and the internist doctor
of that medical facility because of the limitations in the medical
support at that hospital. Their testimonies ran as follows:

JUSTICE MARTIRES:

The question is, do you feel comfortable with the continued

confinement of Senator Enrile at the Philippine National Police
Hospital?

DR. SERVILLANO:

No, Your Honor.

JUSTICE MARTIRES:
Director, doctor, do you feel comfortable with the continued
confinement of Senator Enrile at the PNP Hospital ?

PSUPT. JOCSON:

No, Your Honor.

JUSTICE MARTIRES:

Why?

PSUPT. JOCSON:

Because during emergency cases, Your Honor, we cannot give him the
best.

JUSTICE MARTIRES:

At present, since you are the attending physician of the accused,

Senator Enrile, are you happy or have any fear in your heart of the
present condition of the accused vis a vis the facilities of the hospital?

DR. SERVILLANO:

Yes, Your Honor. I have a fear.

JUSTICE MARTIRES:

That you will not be able to address in an emergency situation?

DR. SERVILLANO:

Your Honor, in case of emergency situation we can handle it but

probably if the condition of the patient worsen, we have no facilities
to do those things, Your Honor.45

Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge,
provided his continued incarceration is clearly shown to be injurious
to his health or to endanger his life. Indeed, denying him bail despite
imperiling his health and life would not serve the true objective of
preventive incarceration during the trial.
Granting bail to Enrile on the foregoing reasons is not unprecedented.
The Court has already held in Dela Rama v. The People’s Court:46

x x x This court, in disposing of the first petition for certiorari, held

the following:

x x x [ U]nless allowance of bail is forbidden by law in the particular

case, the illness of the prisoner,

independently of the merits of the case, is a circumstance, and the

humanity of the law makes it a consideration which should, regardless
of the charge and the stage of the proceeding, influence the court to
exercise its discretion to admit the prisoner to bail ;47

xxx

Considering the report of the Medical Director of the Quezon Institute

to the effect that the petitioner "is actually suffering from minimal,
early, unstable type of pulmonary tuberculosis, and chronic, granular
pharyngitis," and that in said institute they "have seen similar cases,
later progressing into advance stages when the treatment and
medicine are no longer of any avail;" taking into consideration that
the petitioner’s previous petition for bail was denied by the People’s
Court on the ground that the petitioner was suffering from quiescent
and not active tuberculosis, and the implied purpose of the People’s
Court in sending the petitioner to the Quezon Institute for clinical
examination and diagnosis of the actual condition of his lungs, was
evidently to verify whether the petitioner is suffering from active
tuberculosis, in order to act accordingly in deciding his petition for
bail; and considering further that the said People’s Court has adopted
and applied the well-established doctrine cited in our above-quoted
resolution, in several cases, among them, the cases against Pio Duran
(case No. 3324) and Benigno Aquino (case No. 3527), in which the said
defendants were released on bail on the ground that they were ill and
their continued confinement in New Bilibid Prison would be injurious
to their health or endanger their life; it is evident and we
consequently hold that the People’s Court acted with grave abuse of
discretion in refusing to re lease the petitioner on bail.48

It is relevant to observe that granting provisional liberty to Enrile will

then enable him to have his medical condition be properly addressed
and better attended to by competent physicians in the hospitals of his
choice. This will not only aid in his adequate preparation of his
defense but, more importantly , will guarantee his appearance in
court for the trial.

On the other hand, to mark time in order to wait for the trial to finish
before a meaningful consideration of the application for bail can be
had is to defeat the objective of bail, which is to entitle the accused to
provisional liberty pending the trial. There may be circumstances
decisive of the issue of bail – whose existence is either admitted by
the Prosecution, or is properly the subject of judicial notice – that the
courts can already consider in resolving the application for bail
without awaiting the trial to finish.49 The Court thus balances the
scales of justice by protecting the interest of the People through
ensuring his personal appearance at the trial, and at the same time
realizing for him the guarantees of due process as well as to be
presumed innocent until proven guilty.

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored

the objective of bail to ensure the appearance of the accused during
the trial; and unwarrantedly disregarded the clear showing of the
fragile health and advanced age of Enrile. As such, the Sandiganbayan
gravely abused its discretion in denying Enrile’s Motion To Fix Bail.
Grave abuse of discretion, as the ground for the issuance of the writ of
certiorari , connotes whimsical and capricious exercise of judgment as
is equivalent to excess, or lack of jurisdiction.50 The abuse must be so
patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility. 51 WHEREFORE,
the Court GRANTS the petition for certiorari ; ISSUES the writ of
certiorari ANNULING and SETTING ASIDE the Resolutions issued by
the Sandiganbayan (Third Division) in Case No. SB-14 CRM-0238 on
July 14, 2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE
of petitioner Juan Ponce Enrile in Case No. SB-14-CRM-0238 upon
posting of a cash bond of ₱1,000,000.00 in the Sandiganbayan; and
DIRECTS the immediate release of petitioner Juan Ponce Enrile from
custody unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.
EN BANC

G.R. No. 224162, November 07, 2017

JANET LIM NAPOLES,, Petitioner, v. SANDIGANBAYAN (THIRD

DIVISION), Respondent.

DECISION

REYES, JR., J.:

Before this Court is a petition for certiorari under Rule 65 of the Rules
of Court, which sought to nullify and set aside the Resolutions dated
October 16, 20151 and March 2, 20162 of the Sandiganbayan in SB-14-
CRM-0238. These Resolutions denied Janet Lim Napoles' (Napoles)
application for bail because the evidence of her guilt for the crime of
Plunder is strong.

Factual Antecedents

On September 16, 2013, the Office of the Ombudsman received the

report of the National Bureau of Investigation (NBI), regarding its
investigation on several persons, including Napoles, former Senator
Juan Ponce Enrile (Enrile) and his former Chief of Staff, Atty. Jessica
Lucila Reyes (Reyes). In its report, the NBI recommended to prosecute
Napoles, former Senator Enrile, Reyes, and several other named
individuals for the crime of Plunder, defined and penalized under
Section 2 of Republic Act (RA) No. 7080, as amended, for essentially
misappropriating former Senator Enrile's Priority Development
Assistant Fund (PDAF) through non-governmental organizations
(NGOs) that were selected without the required bidding
procedure.3 This case was docketed as OMB-C-C-13-0318.4

Soon after, or on November 18, 2013, the Office of the Ombudsman

received a Complaint from its Field Investigation Office (FIO),
criminally charging former Senator Enrile, Reyes, Napoles, and fifty-
two (52) other individuals with violations of RA No. 7080 and Section
3(e) of RA No. 3019.5 Said complaint was docketed as OMB-C-C-13-
0396.6

In a Joint Resolution dated March 28, 2014, the Ombudsman Special

Panel of Investigators found probable cause to indict Napoles, among
others, with one (1) count of Plunder and fifteen (15) counts of
violating Section 3(e) of RA No. 3019. They likewise recommended to
immediately file the necessary Informations against all the named
accused.7

Some of the named accused, including Napoles, filed their respective

motions for reconsideration. The Special Panel of Investigators denied
these motions in its Joint Order dated June 4, 2014, but dropped Ruby
Chan Tuason as a respondent, in light of her admission as a State
witness and her corresponding immunity from criminal prosecution.8

Thus, in an Information dated June 5, 2014, Napoles, together with

former Senator Enrile, Reyes, Ronald John Lim and John Raymund De
Asis, were charged with Plunder in Criminal Case No. SB-14-CRM-
0238 filed with the Sandiganbayan.9 The pertinent portions of the
Information state:

In 2004 to 2010, or thereabout (sic), in the Philippines, and within

this Honorable Court's jurisdiction, above-named accused JUAN
PONCE ENRILE, then a Philippine Senator, JESSICA LUCILA G. REYES,
then Chief of Staff of Senator Enrile's Office, both public officers,
committing the offense in relation to their respective offices,
conspiring with one another and with JANET LIM NAPOLES, RONALD
JOHN LIM, and JOHN RAYMUND DE ASIS, did then and there willfully,
unlawfully, and criminally amass, accumulate, and/or acquire ill-
gotten wealth amounting to at least ONE HUNDRED SEVENTY TWO
MILLION EIGHT HUNDRED THIRTY FOUR THOUSAND FIVE HUNDRED
PESOS (Php172,834,500.00) through a combination or series of overt
criminal acts, as follows:

a) by repeatedly receiving from NAPOLES and/or representatives

LIM, DE ASIS, and others, kickbacks or commissions under the
following circumstances: before, during and/or after the project
identification, NAPOLES gave, and ENRILE and/or REYES
received, a percentage of the cost of a project to be funded from
ENRILE's Priority Development Assistance Fund (PDAF), in
consideration of ENRILE's endorsement, directly or through
 REYES, to the appropriate government agencies, of NAPOLES'
non-government organizations which became the recipients
and/or target implementors (sic) of ENRILE's PDAF projects,
which duly-funded projects turned out to be ghosts or
fictitious, thus enabling NAPOLES to misappropriate the PDAF
proceeds for her personal gain;

b) by taking undue advantage, on several occasions, of their official

positions, authority, relationships, connections, and influence to
unjustly enrich themselves at the expense and to the damage and
prejudice, of the Filipino people and the Republic of the
Philippines.

CONTRARY TO LAW.10 (Emphasis Ours)

On July 7, 2014, Napoles filed her Petition for Bail, arguing that the
evidence of the prosecution is insufficient to prove her guilt beyond
reasonable doubt. She particularly assailed the credibility of the State
witnesses (otherwise referred to as whistleblowers) as these are
allegedly mere hearsay, tainted with bias, and baseless. Citing the res
inter alios acta rule, Napoles submitted that the testimonies of these
whistleblowers are inadmissible against her.11

In view of Napoles' application for bail, the Sandiganbayan conducted

bail hearings. The prosecution presented the following witnesses: (a)
Carmencita N. Delantar, then Director in the Department of Budget
and Management (DBM); (b) Susan P. Garcia, an Assistant
Commissioner in the Commission on Audit (COA), and the former
Director of the Special Audit Office; (c) Ryan P. Medrano, the Graft
Investigation and Prosecution Officer from the FIO, Office of the
Ombudsman; (d) Marina Cortez Sula, former employee of Napoles; (e)
Mary Arlene Joyce Baltazar, former bookkeeper for JLN Corporation;
(f) Merlina P. Suñas, former employee of Napoles; (g) Benhur K. Luy,
former finance officer of Napoles; and (h) Ruby Chan Tuason, former
Social Secretary of former President Joseph E. Estrada.12

The prosecution likewise presented the following supposed

beneficiaries of former Senator Enrile's PDAF projects, all of whom
identified their respective sworn statements before the
Sandiganbayan: (a) Eldred P. Tumbocon, Municipal Mayor of
Umingan, Pangasinan; (b) Francisco O. Collado, Jr., Municipal
Agriculturist of Umingan, Pangasinan; (c) Bartolome Ramos,
Municipal Mayor of Sta. Maria, Bulacan; (d) Ricardo V. Revita,
Municipal Mayor of Rosales, Pangasinan; (e) Rodolfo A. Mendoza,
Municipal Agriculturist of San Miguel, Bulacan; and (f) Imelda
Alvarado Eudenio, Municipal Agriculturist of Sta. Maria, Bulacan. The
defense also stipulated that: (a) the witnesses occupied their
respective positions at the time material to the case; (b) they were
unaware that their respective municipalities were recipients of
livelihood projects from former Senator Enrile's PDAF; (c) they did
not receive any agricultural package or livelihood training from
former Senator Enrile, the implementing agencies of his PDAF, or
from any NGO; and (d) they did not sign or prepare any
acknowledgment receipt or liquidation documents pertaining to the
transactions.13

Furthermore, the prosecution presented another group of

beneficiaries, whose testimonies were subject of the same
stipulations: (a) Shiela May Cebedo, Municipal Mayor of Bacuag,
Surigao del Norte; (b) Elyzer C. Chavez, City Mayor of Passi, Iloilo; (c)
Benito D. Siadto, Municipal Mayor of Kibungan, Benguet; (d) Florencio
Bentrez, Municipal Mayor of Tuba, Benguet; and (e) Jose C. Ginez,
Municipal Mayor ofSta. Maria, Pangasinan. The defense cross-
examined this group of beneficiaries.14

After the conclusion of the prosecution's presentation of evidence,

Napoles manifested that she is not presenting any evidence for her
bail application.15

Ruling of the Sandiganbayan

In the first assailed Sandiganbayan Resolution dated October 16, 2015,

the Petition for Bail of Napoles was denied for lack of merit.16 The
relevant portions of this Resolution reads:

It is true that none of the prosecution witnesses testified that Senator

Enrile directly received the kickbacks/commissions/rebates from
accused Napoles. Based on the DDRs of Luy, accused Napoles
repeatedly gave kickbacks/commissions/rebates to Senator Enrile's
middlepersons. Also, prosecution witnesses Suñas and Luy
categorically testified that they were the ones who prepared the
documents and money in paying the kickbacks/commissions/rebates
for Senator Enrile. These kickbacks/commissions/rebates were given
by them or by accused Napoles to Ruby Tuason and other
middlepersons for Senator Enrile.

xxxx

A FINAL WORD

The Court stresses, however, that in resolving this petition for bail of
accused Napoles, it is not passing judgment on the culpability or non-
culpability of Senator Enrile, Atty. Reyes, accused Napoles, Lim[,] and
de Asis. Again, in a petition for bail, the Court is only mandated to
determine whether based on the pieces of evidence presented by the
prosecution, proof evident exists or the presumption of guilt is strong.
As above discussed, the prosecution had presented clear and strong
evidence which leads to a well-guarded dispassionate judgment that
the offense of plunder has been committed as charged; that accused
Napoles is guilty thereof, and that she will probably be punished
capitally if the law were administered at this stage of the proceedings.

WHEREFORE, accused Janet Lim Napoles's (sic) Petition for Bail dated
July 7, 2014, is DENIED for lack of merit.

SO ORDERED.17

On November 4, 2015, Napoles moved for the reconsideration of the

Sandiganbayan's Resolution denying her Petition for Bail. 18 This
motion was likewise deemed unmeritorious and the Sandiganbayan
denied it in its Resolution dated March 2, 2016,19viz.:

WHEREFORE, accused Janet Lim Napoles's (sic) Motion for

Reconsideration dated November 4, 2015 is DENIED for lack of merit.

SO ORDERED.20

Napoles thus filed the present petition before this Court, alleging that
the Sandiganbayan gravely abused its discretion, amounting to lack or
excess of jurisdiction, in denying her bail application. She insists in
the present petition that the prosecution was unable to discharge its
burden of proving that the evidence of her guilt is strong.21

Ruling of this Court

Preliminarily, it should be emphasized that since this is a petition
for certiorari under Rule 65 of the Rules of Court, this Court's review
is limited to whether the Sandiganbayan gravely abused its discretion
amounting to lack or excess of jurisdiction in issuing its assailed
Resolutions denying Napoles' application for bail. The
Court's certiorari jurisdiction covers only errors of jurisdiction on the
part of the Sandiganbayan. It should be borne in mind that not every
error in the proceedings, or every erroneous conclusion of law or fact,
constitutes grave abuse of discretion. Errors in the appreciation of the
parties' evidence, including the conclusions anchored on these
findings, are not correctible by the writ of certiorari.22

In this regard, Napoles bears the burden of showing that the

Sandiganbayan's denial of her bail application was capricious,
whimsical, arbitrary, or despotic, so as to amount to grave abuse of
discretion. This Court is not a trier of facts. As such, it must be
established that there was a patent and gross abuse of discretion
amounting to an evasion of a positive duty, or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of
law.23

It is within this framework that the Court reviewed the assailed

Sandiganbayan Resolutions.

The prosecution bears the burden of proving that the evidence of

Napoles' guilt for the crime of Plunder is strong.

Despite the arrest of the accused, or his/her voluntary surrender as

the case may be, the accused may be granted provisional liberty under
certain conditions. This right to bail is guaranteed in the Bill of
Rights, except when the accused is charged with a capital
offense,24 viz.:

Section 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.25
While bail may generally be granted as a matter of right prior to the
conviction of the accused,26 those charged with a capital offense is
granted bail only when the evidence of guilt is not strong:

Section 7. Capital offense of an offense punishable by reclusion

perpetua or life imprisonment, not bailable. — No person charged with
a capital offense, or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal prosecution. (7a) 27

The trial court is thus granted the discretion to determine whether

there is strong evidence of guilt on the part of the accused. The trial
court may also deny the application for bail when the accused is a
flight risk, notwithstanding the prosecution's evidence on the guilt of
the accused.28

In exercising this discretion, the trial court should receive the parties'
evidence at a hearing duly scheduled for this purpose. The prosecution
and the accused are granted reasonable opportunity to prove their
respective positions: on the part of the prosecution, that the evidence
of guilt against the accused is strong, and on the part of the defense,
the opposite.29 The hearing is summary and limited to the
determination of the weight of evidence for purposes of granting or
denying bail. The denial or refusal must be supported by a summary of
the prosecution's evidence.30

In Cortes v. Catral,31 this Court laid down the following duties of the
trial court in cases of an application for bail:

1. In all cases, whether bail is a matter of right or of discretion, notify

the prosecutor of the hearing of the application for bail or require him
to submit his recommendation (Section 18, Rule 114 of the Rules of
Court as amended);

2. Where bail is a matter of discretion, conduct a hearing of the

application for bail regardless of whether or not the prosecution
refuses to present evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to exercise its sound
discretion; (Sections 7 and 8, supra).

3. Decide whether the guilt of the accused is strong based on the

summary of evidence of the prosecution;
4. If the guilt of the accused is not strong, discharge the accused upon
the approval of the bailbond (Section 19, supra) Otherwise petition
should be denied.32

Since Napoles was charged with the crime of Plunder, which carries
the imposable penalty of reclusion perpetua,33 she cannot be admitted
to bail when the evidence of her guilt is strong. This was the burden
that the prosecution assumed in the subsequent hearings that
followed the filing of Napoles' Petition for Bail before the
Sandiganbayan. As a trial court, the Sandiganbayan, in turn,
possessed the jurisdiction to hear and weigh the evidence of the
prosecution and the defense.

At that stage of the proceedings, the bail hearings are limited to the
determination of whether there is a strong presumption of Napoles'
guilt.34It is merely a preliminary determination, and the
Sandiganbayan may deny admission to bail even when there is
reasonable doubt as to the guilt of Napoles. Thus, the prosecution
can discharge its burden by proving that the evidence against Napoles
shows evident proof of guilt or a great presumption of guilt, which the
Court defined in People v. Cabral 35 as follows:

By judicial discretion, the law mandates the determination of whether

proof is evident or the presumption of guilt is strong. "Proof evident"
or "Evident proof” in this connection has been held to mean clear,
strong evidence which leads a well-guarded dispassionate judgment to
the conclusion that the offense has been committed as charged, that
accused is the guilty agent, and that he will probably be punished
capitally if the law is administered. "Presumption great" exists when
the circumstances testified to are such that the inference of guilt
naturally to be drawn therefrom is strong, clear, and convincing to an
unbiased judgment and excludes all reasonable probability of any other
conclusion. Even though there is a reasonable doubt as to the guilt of
accused, if on an examination of the entire record the presumption is
great that accused is guilty of a capital offense, bail should be
refused.36 (Emphasis in the original)

As a lesser quantum of proof than guilt beyond reasonable doubt, the

Sandiganbayan may deny the application for bail on evidence less than
that required for the conviction of Napoles. Furthermore, the
Sandiganbayan "does not sit to try the merits or to enter into any nice
inquiry as to the weight that ought to be allowed to the evidence for
or against accused, nor will it speculate on the outcome of the trial or
on what further evidence may be therein offered and admitted." 37 It
should not be forgotten that the purpose of the bail hearing is to
determine whether the accused is entitled to provisional liberty before
conviction. To require more from the prosecution, as well as from the
trial court, effectively defeats the purpose of the proceeding. 38

The Sandiganbayan did not gravely abuse its discretion in denying

Napoles' Petition for Bail.

Applying these jurisprudential standards to the present case, it is

readily apparent that the Sandiganbayan did not gravely abuse its
discretion amounting to lack or excess of jurisdiction. Upon receiving
Napoles' Petition for Bail, it scheduled hearings to allow the parties to
submit their respective pieces of evidence. The prosecution submitted
numerous testimonial and documentary evidence, endeavoring to
establish evident proof of Napoles' guilt. Napoles, on the other hand,
opted not to submit any evidence on her behalf and relied instead on
the supposed weakness of the prosecution's evidence.39

The Sandiganbayan's first assailed Resolution dated October 16, 2015

also reveals straightaway that the evidence of the prosecution was
summarized accordingly, effectively complying with the due process
requirements.40 It even extensively discussed the available evidence in
relation to the elements of Plunder, which the prosecution intended to
prove point by point for purposes of demonstrating Napoles' great
presumption of guilt.41

Napoles points out in her petition, however, that the Sandiganbayan

erred in finding strong evidence of her guilt for the crime of
Plunder.42 She challenges the credibility of the prosecution witnesses,
particularly the whistleblowers Luy, Suñas, Sula, and Baltazar.43

She further claims that her bail application should have been granted
because the prosecution did not present any documentary evidence
directly connecting her to the NGOs that facilitated the
misappropriation of former Senator Enrile's PDAF.44 In the same
manner, she likewise argues that there was no direct proof of any
agreement with former Senator Enrile and Reyes to obtain kickbacks
from the implementation of former Senator Enrile's PDAF
projects.45 Napoles particularly repudiates the evidentiary value of the
Summary of Rebates that Luy prepared from the Daily Disbursement
Reports (DDRs) and Disbursement Vouchers (DVs) that came into in
his possession while he was an employee of Napoles.46

At first glance, it is apparent that the arguments of Napoles before

this Court are fundamentally allegations of serious errors on the part
of the Sandiganbayan in appreciating the evidence of the prosecution.
This is not within the purview of this Court's review power under
Rule 65 of the Rules of Court. This Court is not a trier of facts and this
proceeding is limited to the determination of whether the
Sandiganbayan patently, grossly, and arbitrarily exercised its
discretion with respect to Napoles' bail application.

In these lights, the succeeding discussion on the evidence of the

prosecution against Napoles is limited only to reviewing whether the
Sandiganbayan gravely abused its discretion in denying the
application for bail on the basis of the evidence of the prosecution. For
this purpose, it must be clearly established that the Sandiganbayan
arbitrarily ignored the alleged dearth of evidence against Napoles.

The prosecution was able to establish with evident proof that

Napoles participated in the implied conspiracy to misappropriate
public funds and acquire ill-gotten wealth.

The charge of Plunder against Napoles in this case alleges a

conspiracy among former Senator Enrile and Reyes, as public officers,
and Napoles, Lim, and De Asis, as private individuals. On this point,
this Court has consistently ruled that the conspiracy among the
accused to commit the crime of Plunder is usually an agreement or
connivance to secretly cooperate in doing the unlawful act. 47 Even
Congress, in its Explanatory Note to the proposed bill criminalizing
Plunder, recognized that this crime, by its very nature, is committed
through a series or combination of acts done "in stealth and secrecy
over a period of time."48

Seeing as it would be difficult to provide direct evidence establishing

the conspiracy among the accused, the Sandiganbayan may infer it
"from proof of facts and circumstances which, taken together,
apparently indicate that they are merely parts of some complete
whole."49It was therefore unnecessary for the Sandiganbayan to
find direct proof of any agreement among Napoles, former Senator
Enrile and Reyes. The conspiracy may be implied from the intentional
participation in the transaction that furthers the common design and
purpose. As long as the prosecution was able to prove that two or
more persons aimed their acts towards the accomplishment of the
same unlawful object, each doing a part so that their combined acts,
though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a
concurrence of sentiment, the conspiracy may be inferred even if no
actual meeting among them was proven.50

Here, the implied conspiracy among Napoles and her co-accused was
proven through various documentary and testimonial evidence
showing that they acted towards the common goal of
misappropriating the PDAF of former Senator Enrile.

When Commissioner Susan P. Garcia (Garcia) testified regarding the

results of their special audit on the PDAF-funded projects of the
government, they found that Napoles and her co-accused committed
Plunder through an elaborate scheme. It began through a letter
originating from the office of former Senator Enrile being sent to the
concerned implementing agency, informing the latter that the office of
former Senator Enrile designated Jose Antonio Evangelista
(Evangelista) as its representative in the implementation of the PDAF-
funded project. Evangelista, who was likewise the Deputy Chief of
Staff of former Senator Enrile and acting in representative capacity,
then sends another letter to the implementing agency designating a
specific NGO to implement the PDAF-funded project. Thereafter, the
NGO that was endorsed by Evangelista submits a project proposal to
the implementing agency, and proceeds to enter into a memorandum
of agreement (MOA) with the implementing agency and former
Senator Enrile as the parties.51

After the signing of the MOA, the project proposal is attached to the
Special Allotment Release Order (SARO), which allows the
implementing agency to incur the expenses that are stated in
it.52 These documents are submitted to the DBM for processing, and if
not lacking in requirements, the DBM issues the Notice of Cash
Allocation (NCA).53 This authorizes the payment of the allocated
amount to the implementing agency, which is done by way of crediting
the same to its account. After the amount is credited to its account,
the implementing agency prepares the DVs and checks payable to the
identified NGO.54 The NGO, in turn, drafts and submits the
requirements for liquidation (i.e. the accomplishment report, the
disbursement report, and the list of beneficiaries) after receiving the
check.55 However, as it turned out, the Special Audit Team found that
the beneficiaries denied receiving any proceeds, whether in terms of
projects or equipment, from the PDAF of former Senator Enrile.56

Commissioner Garcia and the rest of the Special Audit Team found
that the release of the PDAF to the concerned NGOs through this
system violated the following: (a) DBM National Budget Circular No.
476 dated September 20, 2001, or the guidelines on the release of the
PDAF, which requires national government agencies and government
owned and controlled corporations to only implement programs that
are within their functions; (b) Government Procurement Policy Board
(GPPB) Resolution No. 12-2007, which requires the selection of an
NGO through public bidding or negotiated procurement; and (c) COA
Circular No. 2007-001 dated October 25, 2007, or the guidelines on
the grant, utilization, accounting and auditing of funds released to
NGOs.57

Remarkably, the respective testimonies of Commissioner Garcia and

the supposed beneficiaries58 of former Senator Enrile's PDAF were
corroborated on material points by the whistleblowers. These
whistleblowers, who were former employees of Napoles, participated
in different capacities to the conspiracy.

Merlina P. Suñas (Suñas), a former employee of Napoles, testified that

the office of Napoles received copies of the SARO from the office of
former Senator Enrile. Upon receipt, Napoles held meetings where
they would be given instructions to prepare an indorsement letter
addressed to the implementing agency, and a project proposal
identifying the local government unit that would benefit from the
PDAF-funded project. The drafts of these documents were sent to
Evangelista for review, and subsequently, the finalized versions were
returned to their office. Suñas, as the custodian of documents
involving transactions with legislators, retained a copy for their file. 59

Suñas also testified that Benhur K. Luy (Luy) prepared the letters
authorizing Evangelista to implement the PDAF-funded projects on
behalf of former Senator Enrile. She likewise participated in the
preparation of the MOA executed among the concerned implementing
agency, former Senator Enrile, and the relevant NGO.60

Meanwhile, Luy confirmed that Napoles asked them to prepare the

documents referred to in Suñas' testimony. He also substantiated the
statement of Suñas that the office of former Senator Enrile furnished
them with copies of the PDAF requirements after its submission to the
DBM.61 Luy was the first to receive the documents because he had to
verity if the entries as to the name of the NGO and the project cost
were correct.62

In their separate testimonies, both Suñas and Luy confirmed that

former Senator Enrile received 40% to 50% of the project
cost.63 According to Luy, they referred to the share of the legislators
as rebates, which he recorded in line with his position as the finance
officer of Napoles.64 The payment of the rebates was made in tranches
starting in 2004—with the first half paid to former Senator Enrile
upon the listing of the project, and the balance paid upon the release
of the SAR0.65 Napoles, on the other hand, took 5% of the project cost
as her share.66 The middlepersons who received the rebates on behalf
of former Senator Enrile, such as Tuason,67 were also given 5% of the
project cost.68

Another former employee of Napoles, Marina Cortez Sula (Sula),

narrated that Napoles gave her instructions to register approximately
twenty (20) NGOs, including those that implemented the ghost
projects funded by former Senator Enrile's PDAF The relevant
information regarding these NGOs were listed in a red notebook that
Sula kept to assist her in the preparation of the General Information
Sheets that were regularly submitted to the Securities and Exchange
Commission (SEC).69 This notebook was presented to the
Sandiganbayan during the bail hearing.70

Sula also stated that the NGOs were created at the instance of
Napoles. According to Sula, Napoles asked her and the other
employees to come up with the names of these NGOs. Upon Napoles'
approval of the name, Sula reserved its use at the SEC. Sula also
purchased forms for the articles of incorporation and by-laws of the
NGOs, which she completed under the direction of Napoles. Napoles
then provided the amount necessary for the initial deposit to open a
bank account in the name of the NGO. The bank accounts were opened
at either Metrobank or Landbank because the branch managers were
already familiar with Napoles, making it easy for Sula to facilitate the
process. Thereafter, Sula registered the NGOs with the SEC.71

Sula noted that Napoles selected the incorporators and officers of the
NGOs. The incorporators and officers were usually employees of
Napoles, or the relatives of these employees. Sula testified that those
chosen as presidents of the NGO were aware that their names were
used because they were made to sign the incorporation documents. In
cases where the president was not an employee of Napoles, the
employee who provided the name of the NGO president was made to
sign in their stead.72 Sula likewise admitted to forging the signatures
of the incorporators, or using the incorporators' names without their
knowledge.73

Suñas and Luy corroborated the testimony of Sula on the fictitious

manner by which the NGOs were incorporated. The three of them
were all presidents of different NGOs, and they provided the names of
their relatives as its officers and incorporators.74 In exchange for
agreeing to become presidents of the NGOs, both Suñas and Sula
testified that Napoles promised to provide them 1% of the project cost
as their commission.75

Similar to Suñas and Sula, Mary Arlene Joyce Baltazar (Baltazar),

testified that Napoles likewise promised to give her a commission in
exchange for using her name as the president of an NGO. As the
former bookkeeper of Napoles, Baltazar further confirmed that
Napoles used the names of her employees, and that of their friends
and relatives to make them appear as incorporators or officers of the
concerned NGOs.76 Once they became president of an NGO, Napoles
instructed them to become voluntary members of the Social Security
System (SSS) and Philippine Health Insurance Corporation
(PhilHealth), because Napoles needed to terminate their
77
employment. Baltazar stated that this was purposely done in order
to avoid any connection between Napoles and the NGOs.78

As to the manner by which Napoles obtained the amount allocated for

the PDAF-funded projects, Sula narrated that this was equally done
through the employees of Napoles. Whenever the DBM disbursed the
allocated amount to the implementing agency, a check was issued to
the Napoles-controlled NGO. Since Sula and the other employees were
designated as presidents of these NGOs, they were authorized to
receive the check for the PDAF-funded project from the implementing
agency.79

Napoles had access to the bank accounts of the NGOs because as Sula,
Luy, and Suñas testified during the bail hearing, they were required to
sign blank withdrawal slips, which were turned over to Napoles
together with the corresponding passbook for these accounts. 80 Thus,
in the ultimate scheme of things, Napoles received the amounts
allocated for the PDAF-funded projects of former Senator Enrile,
which she later on apportioned according to the agreed upon share of
the legislators.

With respect to the actual delivery of the PDAF-funded projects to its

intended beneficiaries, Sula, Luy, Suñas, and Baltazar admitted that
they fabricated the liquidation documents. This was done by forging
the receipts and the signatures of the beneficiaries, making it appear
that the project was indeed implemented.81 Again, this supported the
findings of the COA Special Audit Team82 and the FIO83 on the
fictitious projects funded by the PDAF of former Senator Enrile.

It is plain from the foregoing that Napoles and her co-accused, as well
as the former employees of Napoles who were eventually admitted as
State witnesses, had a common design and objective—to divert the
PDAF of former Senator Enrile from its lawful purpose and to their
own personal accounts. The individuals involved in this case
performed different criminal acts, which contributed, directly or
indirectly, in the amassing, accumulation, and acquisition of ill-
gotten wealth. Consistent with the doctrine on implied conspiracy,
these actions on the part of Napoles and her co-accused are sufficient
to prove the existence of a "concurrence m sentiment," regardless of
any proof that an actual agreement took place.

Arguably, there is no documentary evidence directly linking Napoles

to the NGOs used as conduits for the PDAF-funded projects of former
Senator Enrile. However, her ties to the officers of the NGOs involved
in this case reveal otherwise. Napoles' participation in the conspiracy
was established through testimonial evidence, not only from one of
her former employees, but from four (4) witnesses—all of whom
corroborate each other on material points. More importantly, they
testified on the minute details of the scheme that only those privy
to the conspiracy would be able to provide. Notably, Napoles did not
even refute their claims that they were her former employees, relying
instead on singling out inconsequential details in their testimonies.

Even the testimony of Ruby Chan Tuason, the middleperson who

received the rebates of former Senator Enrile on his behalf, confirmed
that Napoles oversaw the implementation of the scheme to divert the
disbursements of the PDAF. She personally met with Napoles to
negotiate the respective shares of the conspirators, and received the
amount on behalf of former Senator Enrile, which she subsequently
turned over to Reyes.84
Since the whistleblowers personally received instructions from
Napoles to incorporate the NGOs, prepare the requirements for the
release of the PDAF, prepare and deliver the rebates to the
middlepersons, and fabricate the liquidation documents, they were
competent witnesses on the subject of their respective
testimonies.85Clearly, the prosecution witnesses and the
documentary evidence supply interlocking pieces of information
that when taken together, provide a complete picture of the
indispensability of the participation of Napoles in the scheme to
misappropriate public funds for the benefit of select individuals,
by using the NGOs as conduits for the PDAF projects of former
Senator Enrile. The directions and instructions she gave to her
former employees constitute a clear evidence of her active
participation, not mere acquiescence or presence, in the conspiracy.

The Sandiganbayan may rely on the testimonies of the

whistleblowers, especially since these were corroborated by other
available evidence.

Napoles nonetheless challenged the credibility of the whistleblowers,

arguing that their testimonies should have been received with "grave
suspicion," coming as they were from "polluted
86
source[s]." However, as this Court earlier discussed, the testimonies
of these prosecution witnesses were consistent, clear, and
corroborative of each other. Other testimonial and documentary
evidence also substantiated the veracity of the whistleblowers'
statements during the bail hearing.

In any case, a careful perusal of the assailed Sandiganbayan

Resolutions reveals that it considered the prosecution's other
testimonial and documentary evidence, and discussed it in relation to
one another. Among the documents that the Sandiganbayan
considered were the letters requesting for the release of former
Senator Enrile's PDAF, the incorporation documents of the NGOs, the
liquidation documents for the PDAF-funded projects, the SAROs itself,
and the DVs issued by the implementing agencies to the NGOs under
the control of Napoles.87

In other words, the Sandiganbayan did not rely solely on the

testimonies of the whistleblowers. Seeing as there were other
available evidence lending credence to their testimonies, the
Sandiganbayan did not gravely abuse its discretion when it considered
the testimonies of the whistleblowers in denying Napoles' bail
application, despite their participation in the conspiracy itself. The
mere fact that the whistleblowers were conspirators themselves does
not automatically render their testimonies incredible and unreliable.
The ruling in United States v. Remigio88 is instructive in this regard:

The true doctrine which should govern the testimony of accomplices,

or what may be variously termed principals, confederates, or
conspirators, is not in doubt. The evidence of accomplices is
admissible and competent. Yet such testimony comes from a "polluted
source." Consequently, it is scrutinized with care. It is properly
subject to grave suspicion. If not corroborated, credibility is affected.
Even then, however, the defendant may be convicted upon the
unsupported evidence of an accomplice. If corroborated absolutely
or even to such an extent as is indicative of trustworthiness, the
testimony of the accomplice is sufficient to warrant a
conviction. This is true even if the accomplice has made previous
statements inconsistent with his testimony at the trial and such
inconsistencies are satisfactorily explained.

xxxx

Where conspiracy is in issue these principles are even more certain. A

conspiracy is more readily proved by the acts of a fellow criminal
than by any other method. If it is shown that the statements of the
conspirator are corroborated by other evidence, then we have
convincing proof of veracity. Even if the confirmatory testimony only
applies to some particulars, we can properly infer that the witness has
told the truth in other respects.89 (Emphasis and underscoring Ours)

At this point it should be emphasized that this Court is not the

proper forum to weigh the credibility of the prosecution
witnesses. It is elementary that the factual findings of the trial court,
especially on the assessment or appreciation of the testimonies of
witnesses, are accorded great weight and respect.90 In this case, it is
the Sandiganbayan that had the opportunity to observe the
deportment and behavior of the witnesses during the bail hearing. It
was in a better position to pass judgment on the credibility of these
witnesses and the weight of their respective testimonies. At any rate,
Napoles was unable to establish any motive on the part of her former
employees, which would compel them to falsely testify against her
and her co-accused.
The core issue, therefore, of whether there is strong evidence of guilt
on the part of Napoles, was resolved by the Sandiganbayan in
accordance with the relevant laws, rules, and jurisprudence.

Plunder is a deplorable crime that unfairly exploits the trust that the
public reposed in its officials. It is inherently immoral not only
because it involves the corruption of public funds, but also because its
essence proceeds from a rapacious intent. This Court's ruling
in Estrada v. Sandiganbayan91 is a constant reminder of the magnitude
of this offense:

As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus,
he says, in his Concurring Opinion—

xxxx

Finally, any doubt as to whether the crime of plunder is a malum in

se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring
to these groups of heinous crimes, this Court held in People v.
Echegaray:

The evil of a crime may take various forms. There are crimes that are,
by their very nature, despicable, either because life was callously
taken or the victim is treated like an animal and utterly dehumanized
as to completely disrupt the normal course of his or her growth as a
human being . . . . Seen in this light, the capital crimes of kidnapping
and serious illegal detention for ransom resulting in the death of the
victim or the victim is raped, tortured, or subjected to dehumanizing
acts; destructive arson resulting in death; and drug offenses involving
minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and
serious illegal detention, where the victim is detained for more than
three days or serious physical injuries were inflicted on the victim or
threats to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson, and
carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped, which are penalized by reclusion perpetua to
death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the
scheme of the larger socio-political and economic context in which
the state finds itself to be struggling to develop and provide for its
poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will
to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. [With the
government] terribly lacking the money to provide even the most
basic services to its people, any form of misappropriation or
misapplication of government funds translates to an actual threat to
the very existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous arc
the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and
damage to society.92 (Emphasis in the original)

It is precisely the enormous gravity of this offense that capital

punishment is imposed on those who are found guilty of Plunder. As a
necessary consequence, provisional liberty is not easily granted to
those accused of this offense, especially when the prosecution more
than amply established that the evidence of guilt is strong. This is a
matter of judicial discretion on the part of the trial court, which this
Court may nullify only when the exercise of this discretion is tainted
with arbitrariness and capriciousness that the trial court failed to act
within the contemplation of law.

Unfortunately for Napoles, there is nothing in the records showing

that the Sandiganbayan gravely abused its discretion amounting to
lack or excess of jurisdiction. It has discharged its judicial duty in
Napoles' bail application in a manner consistent with the applicable
laws and jurisprudence, and the evidence on record. Thus, all things
considered, the Court finds no reason to nullify the assailed
Sandiganbayan Resolutions. The Petition for Bail of Napoles was
correctly denied.

WHEREFORE, premises considered, the petition is DISMISSED. The

Resolutions dated October 16, 2015 and March 2, 2016 of the
Sandiganbayan in SB-14-CRM-0238 are AFFIRMED, there being no
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the Sandiganbayan.

SO ORDERED.

SECOND DIVISION

A.M. No. MTJ-17-1893 (Formerly OCA I.P.I. No. 15-2773-MTJ),

February 19, 2018

TEODORA ALTOBANO-RUIZ, Complainant, v. HON. RAMSEY

DOMINGO G. PICHAY, PRESIDING JUDGE, BRANCH 78,
METROPOLITAN TRIAL COURT, PARAÑAQUE CITY, Respondent.

DECISION

PERALTA, J.:

Before us is the Complaint1 dated June 22, 2015 of complainant

Teodora Altobano-Ruiz (Ruiz) against respondent Judge Ramsey
Domingo G. Pichay (Judge Pichay), Presiding Judge, Metropolitan Trial
Court (MeTC), Branch 78, Parañaque City for gross ignorance of the
law and gross misconduct in connection with the latter's act of
granting bail in favor of Francis Eric Paran (Paran).

The factual antecedents of the case are as follows.

Complainant Ruiz and Paran are the accused in an adultery case,

docketed as Criminal Case No. 2562,2 which is pending before the
Municipal Trial Court in Cities (MTCC), Trece Martires City, Cavite,
presided by Judge Gonzalo Q. Mapili, Jr. On March 19, 2014, accused
Paran was apprehended at his residence in Quezon City by police
authorities from Parañaque City by virtue of the Warrant of
Arrest3 dated March 12, 2014 issued by Judge Mapili. He was detained
for several days at the Parañaque City Police Station.
On March 22, 2014, accused Paran filed an application for bail before
Branch 78, MeTC, Parañaque City, which was promptly approved by
respondent Judge Pichay after the accused posted a cash bond of
P12,000.00, to wit:

WHEREFORE, the Police Authorities of Parañaque City Police Station,

Warrant and Subpoena Unit, Parañaque City is hereby DIRECTED to
RELEASE IMMEDIATELY WITHOUT ANY FURTHER DELAY the accused
FRANCIS ERIC PARAN unless there are causes or cases warranting his
further detention.

The Branch Clerk of Court is hereby DIRECTED to transmit the bond to

the Court of origin.

SO ORDERED.4

On the other hand, Ruiz voluntarily surrendered before Judge Mapili

and was temporarily released on bail upon posting a cash bond of
P12,000.00.

Ruiz alleged that Judge Pichay had no authority to approve Paran's

application for bail since the latter already had a pending criminal
case for adultery in another court, and he was actually arrested in
Quezon City which was outside Judge Pichay's territorial jurisdiction.

On August 10, 2015, the Office of the Court Administrator (OCA)

directed Judge Pichay to submit his comment on the complaint against
him.5

In his Comment6 dated November 27, 2015, Judge Pichay countered

that his assailed Order dated March 22, 2014 was rendered in good
faith and in strict adherence to and faithful compliance with his duties
mandated under the Constitution and the Rules of Court. He insisted
on his court's jurisdiction over accused Paran's application for bail
because the latter was detained at the Parañaque City Police Station,
as shown in the Certificate of Detention issued by SPO4 Dondie Oliva
Aquino. He further averred that he acted on the bail application on the
same date that it was filed, which was a Saturday, in order to give
effect to the accused's constitutional right to bail. Finally, Judge
Pichay asserted that his action was neither tainted with malice nor did
he receive financial gain in resolving the application with dispatch.
On January 18, 2017, the OCA recommended that the instant
administrative complaint be re-docketed as a regular administrative
matter. It further found Judge Pichay guilty of gross ignorance of the
law and recommended that he be meted the penalty of a fine in the
amount of P5,000.00 with stern warning.7

We adopt the findings of the OCA, except as to the recommended

penalty.

Section 17 (a) of Rule 114 of the Rules of Court, as amended by

Administrative Circular No. 12-94 which governs the approval of bail
bonds for criminal cases pending outside the judge's territorial
jurisdiction is instructive, to wit:

Section 17. Bail, where filed. — (a) Bail in the amount fixed may be
filed with the court where the case is pending, or in the absence or
unavailability of the judge thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge, or municipal circuit
trial judge in the province, city, or municipality. If the accused is
arrested in a province, city, or municipality other than where the case
is pending, bail may also be filed with any Regional Trial Court of said
place, or if no judge thereof is available, with any metropolitan trial
judge, municipal trial judge, or municipal circuit trial judge therein.

xxx

The foregoing provision anticipates two (2) situations. First, the

accused is arrested in the same province, city or municipality where
his case is pending. Second, the accused is arrested in the province,
city or municipality other than where his case is pending. In the first
situation, the accused may file bail in the court where his case is
pending or, in the absence or unavailability of the judge thereof, with
another branch of the same court within the province or city. In the
second situation, the accused has two (2) options. First, he may file
bail in the court where his case is pending or, second, he may file bail
with any regional trial court in the province, city or municipality
where he was arrested. When no regional trial court judge is
available, he may file bail with any metropolitan trial judge,
municipal trial judge or municipal circuit trial judge therein.8

However, in the instant case, the case where Judge Pichay approved
Paran's bail bond and issued release order was not pending before his
sala. As correctly pointed out by the OCA, although accused Paran was
detained at the Station Detention Cell, Parañaque City Police Station,
he was nevertheless arrested at his residence in Quezon City.
Considering that Paran was arrested in Quezon City, he could also file
his bail application before any branch at the Regional Trial Court of
Quezon City, and in the absence of any judge thereat, then before any
branch of the Metropolitan Trial Court of Quezon City. Paran could
have also filed his bail application before the MTCC, Trece Martires
City, where his case was pending.

Indeed, the only circumstance where Judge Pichay can exercise

authority to rule on Paran's bail application is if the latter, who was
detained in Parañaque City, was not yet charged with a criminal
offense in another court, pursuant to Section 17(c),9 Rule 114 of the
Rules of Criminal Procedure. However, in the instant case, there was
already a pending criminal case against Paran before the MTCC, Trece
Martires, Cavite as shown in the Certificate of Detention10 attached in
Paran's application of bail. In fact, Paran's arrest was by virtue of a
warrant of arrest issued by Judge Mapili of the MTCC, Trece Martires
City. More importantly, Judge Pichay likewise failed to prove that
there was no available judge to act on Paran's application of bail in
the said respective courts. Clearly, Judge Pichay's approval of Paran's
bail constituted an irregularity arising from his lack of the authority
to do so.

In Judge Español v. Judge Mupas,11 the Court held that judges who
approve applications for bail of accused whose cases are pending in
other courts are guilty of gross ignorance of the law. In Lim v. Judge
Dumlao,12 the Court held that:

x x x The requirements of Section 17(a), Rule 114 x x x must be

complied with before a judge may grant bail. The Court recognizes
that not every judicial error bespeaks ignorance of the law and that, if
committed in good faith, does not warrant administrative sanction,
but only in cases within the parameters of tolerable
misjudgment. Where, however, the law is straightforward and the
facts so evident, not to know it or to act as if one does not know it
constitutes gross ignorance of the law.

Respondent judge undeniably erred in approving the bail and

issuing the order of release. He is expected to know that certain
requirements ought to be complied with before he can approve
[the accuseds] bail and issue an order for his release. The law
involved is rudimentary that it leaves little room for error. x x x13
It must be emphasized that rules of procedure have been formulated
and promulgated by this Court to ensure the speedy and efficient
administration of justice. Failure to abide by these rules undermines
the wisdom behind them and diminishes respect for the law. Judges
should ensure strict compliance therewith at all times in their
respective jurisdictions.14 Judge Pichay cannot excuse himself from
the consequences of his action by invoking good faith. As a judge, he
must have the basic rules at the palm of his hands as he is expected to
maintain professional competence at all times. Since Judge Pichay
presides over MeTC-Br. 78 in Parañaque City, his territorial
jurisdiction is confined therein. Therefore, to approve bail
applications and issue corresponding release orders in a case pending
in courts outside his territorial jurisdiction, constitute ignorance of
the law so gross as to amount to incompetence.15

Time and again, the Court has adverted to the solemn obligation of
judges to be very zealous in the discharge of their bounden duties.
Nonetheless, the earnest efforts of judges to promote a speedy
administration of justice must at all times be exercised with due
recognition of the boundaries and limits of their jurisdiction or
authority.16 Judge Pichay might have the noble objective to expedite
the case and render prompt justice but he cannot do in violation of the
rules of procedure.

PENALTY

Section 8, Rule 140 of the Rules of Court, as amended by A.M. No. 01-
8-10-SC17 characterizes gross ignorance of the law and procedure as a
grave offense. The penalties prescribed for such offense are: (1)
Dismissal from service, forfeiture of all or part of the benefits as the
Court may determine, and disqualification from reinstatement or
appointment to any public office, including government-owned or
controlled corporations, provided, however, that the forfeiture of
benefits shall in no case include accrued leave credits; (2) Suspension
from office without salary and other benefits for more than three (3)
months but not exceeding six (6) months; or (3) a fine of more than
P20,000.00 but not exceeding P40,000.00.

While We agree with the findings of the OCA, We, however, do not
agree with its recommendation in so far as the penalty to be imposed
since this is not Judge Pichay's first administrative infraction. In
Spouses Marcelo v. Judge Pichay,18 Judge Pichay was found guilty of
violating Section 9, Rule 140 of the Rules of Court for undue delay in
resolving the pending incidents relative to Civil Case No. 2004-286
and was fined in the amount of P12,000.00. In A.M. No. MTJ-10-1763
(Formerly OCA IPI No. 09-2209-MTJ),19 Judge Pichay was also held
administratively liable for the same offense. Thus, considering also
Judge Pichay's previous administrative infractions, We find it apt to
impose the maximum amount of fine upon him.

WHEREFORE, premises considered, respondent Judge Ramsey

Domingo G. Pichay, Presiding Judge, Branch 78, Metropolitan Trial
Court, Parañaque City is found GUILTY of GROSS IGNORANCE OF
THE LAW, and a FINE equivalent to the amount of P40,000.00 is
hereby imposed upon him. He is, likewise, sternly warned that the
commission of the same offense or a similar act in the future will be
dealt with more severely.

SO ORDERED.

RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER (A.M. NO. 18-

07-05-SC; FULL TEXT)

[In a Resolution dated 7 August 2018, the Supreme Court En Banc

approved the proposed Rule on Precautionary Hold Departure
Order. It shall take effect within fifteen days following its publication
in two newspapers of general circulation. Here’s the full text of
the Rule on Precautionary Hold Departure Order (A.M. No. 18-07-
05-SC).]

RULE ON PRECAUTIONARY HOLD DEPARTURE ORDER

Section 1. Precautionary Hold Departure Order. – is an order in

writing issued by a court commanding the Bureau of Immigration to
prevent any attempt by a person suspected of a crime to depart from
·the Philippines, which shall be issued ex-parte in cases involving
crimes where the minimum of the penalty prescribed by law is at least
six (6) years and one (I) day or when the offender is a foreigner
regardless of the imposable penalty.

Section 2. Where filed. – The application for a precautionary hold

departure order may be filed by a prosecutor with any regional trial
court within whose territorial jurisdiction the alleged crime was
committed: Provided, that for compelling reasons, it can be filed with
any regional trial court within the judicial region where the crime was
committed if the place of the commission of the crime is
known; Provided, further, that the regional trial courts in the City of
Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de
Oro City shall also have the authority to act on applications filed by
the prosecutor based on complaints instituted by the National Bureau
of Investigation, regardless where the alleged crime was committed.

Section 3. Finding of probable cause. – Upon motion by the

complainant in a criminal complaint filed before the office of the city
or provincial prosecutor, and upon a preliminary determination of
probable cause based on the complaint and attachments, the
investigating prosecutor may file an application in the name of the
People of the Philippines for a precautionary hold order (PHDO) with
the proper regional trial court. The application shall be accompanied
by the complaint-affidavit and its attachments, personal details,
passport number and a photograph of the respondent, if available.

Section 4. Grounds for issuance. – A precautionary hold departure

order shall not issue except upon determination by the judge, in
whose court the application is filed, that probable cause exists, and
there is a high probability that respondent will depart from the
Philippines to evade arrest and prosecution of crime against him or
her. The judge shall personally examine under oath or affirmation, in
the form of searching questions and answers in writing, the applicant
and the witnesses he or she may produce on facts personally known to
them and attaching to the record their sworn statements.

If the judge finds that probable cause exists and there is a high
probability that the respondent will depart, he or she shall issue the
PHDO and direct the Bureau of Immigration to hold and prevent the
departure of the respondent at any Philippine airport or ports.
Otherwise, the judge shall order the dismissal of the application.

Section 5. Preliminary finding of probable cause. – Since the finding

of probable cause by the judge is solely based on the complaint and is
specifically issued for the purpose of issuing the PHDO, the same shall
be without prejudice to the resolution o f the prosecutor of the
criminal complaint considering the complaint-affidavit, counter-
affidavit, reply- affidavit, and the evidence presented by both parties
during the preliminary investigation. If the prosecutor after
preliminary investigation dismisses the criminal complaint for lack of
probable cause then the respondent may use the dismissal as a ground
for the lifting of the PHDO with the regional trial court that issued the
order. If the prosecutor finds probable cause and files the criminal
information, the case with the court that issued the PHDO, on motion
of the prosecutor shall be consolidated with the court where the
criminal information is filed.

Section 6. Form and validity of the precautionary hold departure

order. – The precautionary hold departure order shall indicate the
name of the respondent, his or her alleged crime, the time and place
of its commission, and the name of the complainant. (See Annex “A”
herein). A copy of the application, personal details, passport number,
photograph of the respondent, if available, shall be appended to the
order. The order shall be valid until lifted by the issuing court as may
be warranted by the result of the preliminary investigation.

The court shall furnish the Bureau of Immigration with a duly

certified copy of the hold departure order within twenty-four (24)
hours from issuance.

Section 7. Lifting of the Order. – The respondent may file a verified

motion before the issuing court for the temporary lifting of PHDO on
meritorious ground; that, based on the complaint-affidavit and the
evidence that he or she will present, there is doubt that probable
cause exists to issue the PHDO or it is shown that he or she is not a
flight risk: Provided, that the respondent posts a bond; Provided,
further, that the lifting of the PHDO is without prejudice to the
resolution of the preliminary investigation against the respondent.

Section 8. Bond. – Respondent may ask the issuing court to allow him
or her to leave the country upon posting of a bond in an amount to be
determined by the court subject to the conditions set forth in the
Order granting the temporary lifting of the PHDO.

Section 9. Effectivity. – This Rule shall take effect within fifteen (15)
days following its publication in two (2) newspapers of general
circulation in the Philippines.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 185128 January 30, 2012

(Formerly UDK No. 13980)
RUBEN DEL CASTILLO @ BOY CASTILLO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

For this Court's consideration is the Petition for

1
Review on Certiorari under Rule 45 of Ruben del Castillo assailing the
Decision2 dated July 31, 2006 and Resolution3 dated December 13,
2007 of the Court of Appeals (CA) in CA-G.R. CR No. 27819, which
affirmed the Decision4 dated March 14, 2003 of the Regional Trial
Court (RTC), Branch 12, Cebu, in Criminal Case No. CBU-46291,
finding petitioner guilty beyond reasonable doubt of violation of
Section 16, Article III of Republic Act (R.A.) 6425.

The facts, as culled from the records, are the following:

Pursuant to a confidential information that petitioner was engaged in

selling shabu, police officers headed by SPO3 Bienvenido Masnayon,
after conducting surveillance and test-buy operation at the house of
petitioner, secured a search warrant from the RTC and around 3
o'clock in the afternoon of September 13, 1997, the same police
operatives went to Gil Tudtud St., Mabolo, Cebu City to serve the
search warrant to petitioner.

Upon arrival, somebody shouted "raid," which prompted them to

immediately disembark from the jeep they were riding and went
directly to petitioner's house and cordoned it. The structure of the
petitioner's residence is a two-storey house and the petitioner was
staying in the second floor. When they went upstairs, they met
petitioner's wife and informed her that they will implement the
search warrant. But before they can search the area, SPO3 Masnayon
claimed that he saw petitioner run towards a small structure, a nipa
hut, in front of his house. Masnayon chased him but to no avail,
because he and his men were not familiar with the entrances and exits
of the place.

They all went back to the residence of the petitioner and closely
guarded the place where the subject ran for cover. SPO3 Masnayon
requested his men to get a barangay tanod and a few minutes
thereafter, his men returned with two barangay tanods.
In the presence of the barangay tanod, Nelson Gonzalado, and the
elder sister of petitioner named Dolly del Castillo, searched the house
of petitioner including the nipa hut where the petitioner allegedly ran
for cover. His men who searched the residence of the petitioner found
nothing, but one of the barangay tanods was able to confiscate from
the nipa hut several articles, including four (4) plastic packs
containing white crystalline substance. Consequently, the articles that
were confiscated were sent to the PNP Crime Laboratory for
examination. The contents of the four (4) heat- sealed transparent
plastic packs were subjected to laboratory examination, the result of
which proved positive for the presence of methamphetamine
hydrochloride, or shabu.

Thus, an Information was filed before the RTC against petitioner,

charging him with violation of Section 16, Article III of R.A. 6425, as
amended. The Information5 reads:

That on or about the 13th day of September 1997, at about 3:00 p.m.
in the City of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the said accused, with deliberate intent, did then
and there have in his possession and control four (4) packs of white
crystalline powder, having a total weight of 0.31 gram, locally known
as "shabu," all containing methamphetamine hydrochloride, a
regulated drug, without license or prescription from any competent
authority.

CONTRARY TO LAW.6

During arraignment, petitioner, with the assistance of his counsel,

pleaded not guilty.7 Subsequently, trial on the merits ensued.

To prove the earlier mentioned incident, the prosecution presented

the testimonies of SPO3 Bienvenido Masnayon, PO2 Milo Arriola, and
Forensic Analyst, Police Inspector Mutchit Salinas.

The defense, on the other hand, presented the testimonies of

petitioner, Jesusa del Castillo, Dalisay del Castillo and Herbert Aclan,
which can be summarized as follows:

On September 13, 1997, around 3 o'clock in the afternoon, petitioner

was installing the electrical wirings and airconditioning units of the
Four Seasons Canteen and Beauty Parlor at Wacky Bldg., Cabancalan,
Cebu. He was able to finish his job around 6 o'clock in the evening,
but he was engaged by the owner of the establishment in a
conversation. He was able to go home around 8:30-9 o'clock in the
evening. It was then that he learned from his wife that police
operatives searched his house and found nothing. According to him,
the small structure, 20 meters away from his house where they found
the confiscated items, was owned by his older brother and was used
as a storage place by his father.

After trial, the RTC found petitioner guilty beyond reasonable of the
charge against him in the Information. The dispositive portion of the
Decision reads:

WHEREFORE, premises considered, this Court finds the accused Ruben

del Castillo "alyas Boy Castillo," GUILTY of violating Section 16,
Article III, Republic Act No. 6425, as amended. There being no
mitigating nor aggravating circumstances proven before this Court,
and applying the Indeterminate Sentence Law, he is sentenced to
suffer the penalty of Six (6) Months and One (1) Day as Minimum and
Four (4) Years and Two (2) Months as Maximum of Prision
Correccional.

The four (4) small plastic packets of white crystalline substance

having a total weight of 0.31 gram, positive for the presence of
methamphetamine hydrochloride, are ordered confiscated and shall be
destroyed in accordance with the law.

SO ORDERED.8

Aggrieved, petitioner appealed his case with the CA, but the latter
affirmed the decision of the RTC, thus:

WHEREFORE, the challenged Decision is AFFIRMED in toto and the

appeal is DISMISSED, with costs against accused-appellant.

SO ORDERED.9

After the motion for reconsideration of petitioner was denied by the

CA, petitioner filed with this Court the present petition
for certiorari under Rule 45 of the Rules of Court with the following
arguments raised:

1. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE

PROVISIONS OF THE CONSTITUTION, THE RULES OF COURT
 AND ESTABLISHED JURISPRUDENCE VIS-A-VIS VALIDITY OF
SEARCH WARRANT NO. 570-9-1197-24;

2. THE COURT OF APPEALS ERRED IN RULING THAT THE FOUR

(4) PACKS OF WHITE CRYSTALLINE POWDER ALLEGEDLY
FOUND ON THE FLOOR OF THE NIPA HUT OR STRUCTURE ARE
ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER, NOT
ONLY BECAUSE THE SAID COURT SIMPLY PRESUMED THAT IT
WAS USED BY THE PETITIONER OR THAT THE PETITIONER RAN
TO IT FOR COVER WHEN THE SEARCHING TEAM ARRIVED AT
HIS RESIDENCE, BUT ALSO, PRESUMING THAT THE SAID NIPA
HUT OR STRUCTURE WAS INDEED USED BY THE PETITIONER
AND THE FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER
WERE FOUND THEREAT. THE SUBJECT FOUR (4) PACKS OF
WHITE CRYSTALLINE POWDER ARE FRUITS OF THE
POISONOUS TREE; and

3. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE

ELEMENT OF "POSSESSION" AS AGAINST THE PETITIONER, AS
IT WAS IN VIOLATION OF THE ESTABLISHED JURISPRUDENCE
ON THE MATTER. HAD THE SAID COURT PROPERLY APPLIED
THE ELEMENT IN QUESTION, IT COULD HAVE BEEN ASSAYED
THAT THE SAME HAD NOT BEEN PROVEN.10

The Office of the Solicitor General (OSG), in its Comment dated

February 10, 2009, enumerated the following counter-arguments:

SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge

Priscilla S. Agana of Branch 24, Regional Trial Court of Cebu City is
valid.

II

The four (4) packs of shabu seized inside the shop of petitioner are
admissible in evidence against him.

III

The Court of Appeals did not err in finding him guilty of illegal
possession of prohibited drugs.11
Petitioner insists that there was no probable cause to issue the search
warrant, considering that SPO1 Reynaldo Matillano, the police officer
who applied for it, had no personal knowledge of the alleged illegal
sale of drugs during a test-buy operation conducted prior to the
application of the same search warrant. The OSG, however, maintains
that the petitioner, aside from failing to file the necessary motion to
quash the search warrant pursuant to Section 14, Rule 127 of the
Revised Rules on Criminal Procedure, did not introduce clear and
convincing evidence to show that Masnayon was conscious of the
falsity of his assertion or representation.

Anent the second argument, petitioner asserts that the nipa hut
located about 20 meters away from his house is no longer within the
"permissible area" that may be searched by the police officers due to
the distance and that the search warrant did not include the same nipa
hut as one of the places to be searched. The OSG, on the other hand,
argues that the constitutional guaranty against unreasonable searches
and seizure is applicable only against government authorities and not
to private individuals such as the barangay tanod who found the
folded paper containing packs of shabu inside the nipa hut.

As to the third argument raised, petitioner claims that the CA erred in

finding him guilty beyond reasonable doubt of illegal possession of
prohibited drugs, because he could not be presumed to be in
possession of the same just because they were found inside the nipa
hut. Nevertheless, the OSG dismissed the argument of the petitioner,
stating that, when prohibited and regulated drugs are found in a
house or other building belonging to and occupied by a particular
person, the presumption arises that such person is in possession of
such drugs in violation of law, and the fact of finding the same is
sufficient to convict.

This Court finds no merit on the first argument of petitioner.

The requisites for the issuance of a search warrant are: (1) probable
cause is present; (2) such probable cause must be determined
personally by the judge; (3) the judge must examine, in writing and
under oath or affirmation, the complainant and the witnesses he or
she may produce; (4) the applicant and the witnesses testify on the
facts personally known to them; and (5) the warrant specifically
describes the place to be searched and the things to be
seized.12 According to petitioner, there was no probable cause.
Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought
to be searched.13 A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused. Probable cause
demands more than bare suspicion; it requires less than evidence
which would justify conviction.14 The judge, in determining probable
cause, is to consider the totality of the circumstances made known to
him and not by a fixed and rigid formula,15 and must employ a flexible,
totality of the circumstances standard.16 The existence depends to a
large degree upon the finding or opinion of the judge conducting the
examination. This Court, therefore, is in no position to disturb the
factual findings of the judge which led to the issuance of the search
warrant. A magistrate's determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing
court, as long as there was substantial basis for that
determination.17 Substantial basis means that the questions of the
examining judge brought out such facts and circumstances as would
lead a reasonably discreet and prudent man to believe that an offense
has been committed, and the objects in connection with the offense
sought to be seized are in the place sought to be searched. 18 A review
of the records shows that in the present case, a substantial basis
exists.

With regard to the second argument of petitioner, it must be

remembered that the warrant issued must particularly describe the
place to be searched and persons or things to be seized in order for it
to be valid. A designation or description that points out the place to be
searched to the exclusion of all others, and on inquiry unerringly
leads the peace officers to it, satisfies the constitutional requirement
of definiteness.19 In the present case, Search Warrant No. 570-9-1197-
2420 specifically designates or describes the residence of the petitioner
as the place to be searched. Incidentally, the items were seized by
a barangay tanod in a nipa hut, 20 meters away from the residence of
the petitioner. The confiscated items, having been found in a place
other than the one described in the search warrant, can be considered
as fruits of an invalid warrantless search, the presentation of which
as an evidence is a violation of petitioner's constitutional guaranty
against unreasonable searches and seizure. The OSG argues that,
assuming that the items seized were found in another place not
designated in the search warrant, the same items should still be
admissible as evidence because the one who discovered them was
a barangay tanod who is a private individual, the constitutional
guaranty against unreasonable searches and seizure being applicable
only against government authorities. The contention is devoid of
merit.

It was testified to during trial by the police officers who effected the
search warrant that they asked the assistance of the barangay tanods,
thus, in the testimony of SPO3 Masnayon:

Fiscal Centino:

Q For how long did the chase take place?

A Just a very few moments.

Q After that, what did you [do] when you were not able to reach him?

A I watched his shop and then I requested my men to get a barangay

tanod.

Q Were you able to get a barangay tanod?

A Yes.

Q Can you tell us what is the name of the barangay tanod?

A Nelson Gonzalado.

Q For point of clarification, how many barangay tanod [did] your

driver get?

A Two.

Q What happened after that?

A We searched the house, but we found negative.

Q Who proceeded to the second floor of the house?

A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found
nothing.

Q What about you, where were you?

A I [was] watching his shop and I was with Matillano.

Q What about the barangay tanod?

A Together with Milo and Pogoso.

Q When the search at the second floor of the house yielded

negative what did you do?

A They went downstairs because I was suspicious of his shop

because he ran from his shop, so we searched his shop.

Q Who were with you when you searched the shop?

A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del
Castillo named Dolly del Castillo.

Q You mean to say, that when (sic) SPO1 Reynaldo Matillano,

Barangay Tanod Nilo Gonzalado and the elder sister of Ruben del
Castillo were together in the shop?

A Yes.

Q What happened at the shop?

A One of the barangay tanods was able to pick up white folded

paper.

Q What [were] the contents of that white folded paper?

A A plastic pack containing white crystalline.

Q Was that the only item?

A There are others like the foil, scissor.

Q Were you present when those persons found those tin foil and
others inside the electric shop?

A Yes.21

The fact that no items were seized in the residence of petitioner and
that the items that were actually seized were found in another
structure by a barangay tanod, was corroborated by PO2 Arriola, thus:
FISCAL:

Q So, upon arriving at the house of Ruben del Castillo alias Boy, can
you still recall what took place?

A We cordoned the area.

Q And after you cordoned the area, did anything happen?

A We waited for the barangay tanod.

Q And did the barangay tanod eventually appear?

A Yes. And then we started our search in the presence of Ruben del
Castillo's wife.

Q What is the name of the wife of Ruben del Castillo?

A I cannot recall her name, but if I see her I can recall [her] face.

Q What about Ruben del Castillo, was she around when [you]
conducted the search?

A No. Ruben was not in the house. But our team leader, team mate
Bienvenido Masnayon saw that Ruben ran away from his adjacent
electronic shop near his house, in front of his house.

Q Did you find anything during the search in the house of Ruben del
Castillo?

A After our search in the house, we did not see anything. The house
was clean.

Q What did you do afterwards, if any?

A We left (sic) out of the house and proceeded to his electronic shop.

Q Do you know the reason why you proceeded to his electronic shop?

A Yes. Because our team leader Bienvenido Masnayon saw that (sic)
Ruben run from that store and furthermore the door was open.

Q How far is the electronic shop from the house of Ruben del Castillo?
A More or less, 5 to 6 meters in front of his house.

xxxx

Q So, who entered inside the electronic shop?

A The one who first entered the electronic shop is our team leader
Bienvenido Masnayon.

Q You mentioned that Masnayon entered first. Do you mean to say

that there were other persons or other person that followed after
Masnayon?

A Then we followed suit.

Q All of your police officers and the barangay tanod followed suit?

A I led Otadoy and the barangay tanod.

Q What about you?

A I also followed suit.

Q And did anything happen inside the shop of Ruben del Castillo?

A It was the barangay tanod who saw the folded paper and I saw
him open the folded paper which contained four shabu deck.

Q How far were you when you saw the folded paper and the tanod
open the folded paper?

A We were side by side because the shop was very small.22

SPO1 Pogoso also testified on the same matter, thus:

FISCAL CENTINO:

Q And where did you conduct the search, Mr. Witness?

A At his residence, the two-storey house.

Q Among the three policemen, who were with you in conducting the
search at the residence of the accused?
A I, Bienvenido Masnayon.

Q And what transpired after you searched the house of Ruben del
Castillo?

A Negative, no shabu.

Q And what happened afterwards, if any?

A We went downstairs and proceeded to the small house.

Q Can you please describe to this Honorable Court, what was that
small house which you proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben
del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed to
be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.

Q And who among the team went inside?

A PO2 Milo Areola and the Barangay Tanod.23

Having been established that the assistance of the barangay

tanods was sought by the police authorities who effected the searched
warrant, the same barangay tanods therefore acted as agents of
persons in authority. Article 152 of the Revised Penal Code defines
persons in authority and agents of persons in authority as:

x x x any person directly vested with jurisdiction, whether as an

individual or as a member of some court or governmental corporation,
board or commission, shall be deemed a person in authority. A
barangay captain and a barangay chairman shall also be deemed a
person in authority.

A person who, by direct provision of law or by election or by

appointment by competent authority, is charged with the
maintenance of public order and the protection and security of life
and property, such as barrio councilman, barrio policeman and
barangay leader, and any person who comes to the aid of persons
in authority, shall be deemed an agent of a person in authority.

The Local Government Code also contains a provision which describes

the function of a barangay tanod as an agent of persons in authority.
Section 388 of the Local Government Code reads:

SEC. 388. Persons in Authority. - For purposes of the Revised Penal

Code, the punong barangay, sangguniang barangay members, and
members of the lupong tagapamayapa in each barangay shall be
deemed as persons in authority in their jurisdictions, while other
barangay officials and members who may be designated by law or
ordinance and charged with the maintenance of public order,
protection and security of life and property, or the maintenance of
a desirable and balanced environment, and any barangay member
who comes to the aid of persons in authority, shall be deemed
agents of persons in authority.

By virtue of the above provisions, the police officers, as well as

the barangay tanods were acting as agents of a person in authority
during the conduct of the search. Thus, the search conducted was
unreasonable and the confiscated items are inadmissible in evidence.
Assuming ex gratia argumenti that the barangay tanod who found the
confiscated items is considered a private individual, thus, making the
same items admissible in evidence, petitioner's third argument that
the prosecution failed to establish constructive possession of the
regulated drugs seized, would still be meritorious.

Appellate courts will generally not disturb the factual findings of the
trial court since the latter has the unique opportunity to weigh
conflicting testimonies, having heard the witnesses themselves and
observed their deportment and manner of testifying,24 unless attended
with arbitrariness or plain disregard of pertinent facts or
circumstances, the factual findings are accorded the highest degree of
respect on appeal25 as in the present case.
It must be put into emphasis that this present case is about the
violation of Section 16 of R.A. 6425. In every prosecution for the
illegal possession of shabu, the following essential elements must be
established: (a) the accused is found in possession of a regulated
drug; (b) the person is not authorized by law or by duly constituted
authorities; and (c) the accused has knowledge that the said drug is a
regulated drug.26

In People v. Tira,27 this Court explained the concept of possession of

regulated drugs, to wit:

This crime is mala prohibita, and, as such, criminal intent is not an

essential element. However, the prosecution must prove that the
accused had the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual possession, but
also constructive possession. Actual possession exists when the drug
is in the immediate physical possession or control of the accused. On
the other hand, constructive possession exists when the drug is under
the dominion and control of the accused or when he has the right to
exercise dominion and control over the place where it is found.
Exclusive possession or control is not necessary. The accused cannot
avoid conviction if his right to exercise control and dominion over the
place where the contraband is located, is shared with another.28

While it is not necessary that the property to be searched or seized

should be owned by the person against whom the search warrant is
issued, there must be sufficient showing that the property is under
appellant’s control or possession.29 The CA, in its Decision, referred to
the possession of regulated drugs by the petitioner as a constructive
one. Constructive possession exists when the drug is under the
dominion and control of the accused or when he has the right to
exercise dominion and control over the place where it is found. 30 The
records are void of any evidence to show that petitioner owns the nipa
hut in question nor was it established that he used the said structure
as a shop. The RTC, as well as the CA, merely presumed that petitioner
used the said structure due to the presence of electrical materials, the
petitioner being an electrician by profession. The CA, in its Decision,
noted a resolution by the investigating prosecutor, thus:

x x x As admitted by respondent's wife, her husband is an electrician

by occupation. As such, conclusion could be arrived at that the
structure, which housed the electrical equipments is actually used by
the respondent. Being the case, he has control of the things found in
said structure.31

In addition, the testimonies of the witnesses for the prosecution do

not also provide proof as to the ownership of the structure where the
seized articles were found. During their direct testimonies, they just
said, without stating their basis, that the same structure was the shop
of petitioner.32 During the direct testimony of SPO1 Pogoso, he even
outrightly concluded that the electrical shop/nipa hut was owned by
petitioner, thus:

FISCAL CENTINO:

Q Can you please describe to this Honorable Court, what was that
small house which you proceeded to?

A It is a nipa hut.

Q And more or less, how far or near was it from the house of Ruben
del Castillo?

A 5 to 10 meters.

Q And could you tell Mr. Witness, what was that nipa hut supposed
to be?

A That was the electronic shop of Ruben del Castillo.

Q And what happened when your team proceeded to the nipa hut?

A I was just outside the nipa hut.33

However, during cross-examination, SPO3 Masnayon admitted that

there was an electrical shop but denied what he said in his earlier
testimony that it was owned by petitioner, thus:

ATTY. DAYANDAYAN:

Q You testified that Ruben del Castillo has an electrical shop, is

that correct?

A He came out of an electrical shop. I did not say that he owns the
shop.
Q Now, this shop is within a structure?

A Yes.

Q How big is the structure?

A It is quite a big structure, because at the other side is a mahjong den

and at the other side is a structure rented by a couple.34

The prosecution must prove that the petitioner had knowledge of the
existence and presence of the drugs in the place under his control and
dominion and the character of the drugs.35 With the prosecution's
failure to prove that the nipa hut was under petitioner's control and
dominion, there casts a reasonable doubt as to his guilt. In
considering a criminal case, it is critical to start with the law's own
starting perspective on the status of the accused - in all criminal
prosecutions, he is presumed innocent of the charge laid unless the
contrary is proven beyond reasonable doubt.36 Proof beyond
reasonable doubt, or that quantum of proof sufficient to produce a
moral certainty that would convince and satisfy the conscience of
those who act in judgment, is indispensable to overcome the
constitutional presumption of innocence.37 1âwphi1

WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals
in CA-G. R. No. 27819, which affirmed the Decision dated March 14,
2003 of the Regional Trial Court, Branch 12, Cebu, in Criminal Case
No. CBU-46291 is hereby REVERSED and SET ASIDE. Petitioner
Ruben del Castillo is ACQUITTED on reasonable doubt.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172035 July 4, 2012

FERNANDO Q. MIGUEL, Petitioner,

vs.
THE HONORABLE SANDIGANBAYAN, Respondent.
DECISION

BRION, J.:

Before the Court is a petition for certiorari under Rule 65 1 filed by

Fernando Q. Miguel (petitioner), assailing the January 25, 2006 and
March 27, 2006 resolutions2 of the Sandiganbayan. These resolutions
(i) ordered the petitioner’s suspension from public office and (ii)
denied the petitioner’s motion for reconsideration of the suspension
order.

THE ANTECEDENT FACTS

On May 29, 1996, then Vice Mayor Mercelita M. Lucido and other local
officials3 of Koronadal City, South Cotabato filed a letter-complaint
with the Office of the Ombudsman-Mindanao (Ombudsman)4 charging
the petitioner, among others,5 with violation of Republic Act (R.A.) No.
3019, in connection with the consultancy services for the architectural
aspect, the engineering design, and the construction supervision and
management of the proposed Koronadal City public market (project).6

In a June 27, 1996 order, the Ombudsman directed the petitioner,

among others, to submit his counter-affidavit. On October 23, 1996,
after moving for an extension, the petitioner filed his counter-
affidavit.7 In its July 29, 1999 resolution, the Ombudsman found
probable cause against the petitioner and some private individuals for
violation of R.A. No. 3019 and against the petitioner alone for
Falsification of Public Document under Article 171, par. 4 of the
Revised Penal Code.8

On March 1, 2000, the Ombudsman filed the corresponding

informations with the Sandiganbayan.9 The information for violation
of Section 3(e) of R.A. No. 3019 reads:

That on 10 January 1995 or sometime prior or subsequent thereto, in

the Municipality of Koronadal, South Cotabato, Philippines, and within
the jurisdiction of this Honorable Court, the [petitioner], a high
ranking public officer in his capacity as former Municipal Mayor of
Koronadal, South Cotabato, and as such while in the performance of
his official functions, committing the offense in relation to his
office, taking advantage of his official position, conspiring and
confederating with the private [individuals] xxx acting with evident
bad faith and manifest partiality, did then and there willfully,
unlawfully and criminally give unwarranted benefits and advantages
to said [accused], by inviting them to participate in the
prequalification of consultants to provide the Detailed Architectural &
Engineering Design and Construction Supervision and Management of
the proposed Koronadal Public Market, without causing the
publication of said invitation in a newspaper of general circulation,
thereby excluding other consultants from participating in said
prequalification.10 (Emphases and underscoring added)

On motions separately filed by two of the petitioner’s co-accused,11 the

Sandiganbayan ordered the Office of the Special Prosecutor (OSP) to
conduct a reinvestigation. On August 21, 2000, the petitioner, through
counsel, followed suit and orally moved for a reinvestigation, which
the Sandiganbayan likewise granted. The Sandiganbayan gave the
petitioner ten (10) days within which to file his counter-affidavit with
the OSP.12

Instead of submitting his counter-affidavit, the petitioner asked13 the

Sandiganbayan for a thirty-day extension to submit his counter-
affidavit. Shortly before the expiry of the extension requested, the
petitioner asked14 the OSP for an additional thirty-day period to file
his counter-affidavit. Despite the two extensions asked and granted,
the petitioner asked the OSP anew for a twenty-day extension
period.15

Despite the extension period asked and given, the petitioner failed to
file his counter-affidavit, prompting Prosecutor Norberto B. Ruiz to
declare that the petitioner had waived his right to submit
countervailing evidence (April 25, 2001 resolution). On July 31, 2001,
then Ombudsman Aniano Desierto approved the resolution.16

On August 7, 2001, Prosecutor Ruiz asked the Sandiganbayan for the

arraignment and trial of the petitioner and of the other accused
private individuals.17

On August 6, 2002, after several extensions sought and granted, the

petitioner filed a Motion to Quash and/or Reinvestigation for the
criminal cases against him. On February 18, 2003, the Sandiganbayan
denied the petitioner’s motion because of the pending OSP
reinvestigation – this, despite the OSP’s earlier termination of the
reinvestigation for the petitioner’s continuous failure to submit his
counter-affidavit.18 The petitioner did not question the denial of his
motion.
On November 3, 2004, the petitioner was arraigned; he pleaded not
guilty in both criminal cases.19

On April 28, 2005, the OSP filed a Motion to Suspend [the petitioner]
Pendente Lite. On June 27, 2005, the petitioner filed his "Vigorous
Opposition" based on the "obvious and fatal defect of the
[i]nformation" in failing to allege that the giving of unwarranted
benefits and advantages was done through manifest partiality, evident
bad faith or gross inexcusable negligence.20

On January 25, 2006, the Sandiganbayan promulgated the assailed

resolution21 suspending the petitioner pendente lite –

WHEREFORE, PREMISES CONSIDERED, the Prosecution’s Motion is

GRANTED. As prayed for, the Court hereby orders the suspension of
[the petitioner] from his position as City Mayor, Koronadal City, South
Cotabato, and from any other public position he now holds. His
suspension shall be for a period of ninety (90) days only.22

On February 2, 2006, the petitioner moved for reconsideration of his

suspension order and demanded for a pre-suspension hearing.23 The
Sandiganbayan denied his motion,24 prompting him to file this
certiorari petition to challenge the validity of his suspension order.

THE PETITION

The petitioner claims that the Sandiganbayan gravely abused its

discretion in ordering his suspension despite the failure of the
information to allege that the giving of unwarranted benefits and
advantages by the petitioner was made through "manifest partiality,
evident bad faith or gross inexcusable negligence." He alleges that the
phrases "evident bad faith" and "manifest partiality" actually refers
not to him, but to his co-accused,25 rendering the information fatally
defective.

The petitioner bewails the lack of hearing before the issuance of his
suspension order. Citing Luciano, et al. v. Hon. Mariano, etc., et
al.,26 he claims that "[n]owhere in the records of the [case] can [one]
see any order or resolution requiring the [p]etitioner to show cause at
a specific date of hearing why he should not be ordered
suspended."27 For the petitioner, the requirement of a pre-suspension
hearing can only be satisfied if the Sandiganbayan ordered an actual
hearing to settle the "defect" in the information.
THE OSP’S COMMENT

The OSP argues for the sufficiency of the information since all the
elements of the offense under Section 3(b) of R.A. No. 3019 are
specifically pleaded by way of ultimate facts. These elements are:

1. The petitioner was the Municipal Mayor of Koronadal, South

Cotabato at the time material to the acts complained of;

2. The petitioner acted with manifest partiality and evident bad

faith when he invited only his co-accused private individuals to
participate in the prequalification of consultants for the project
instead of publishing it in a newspaper of general circulation;
and

3. The petitioner’s actions, performed in relation to his office,

gave unwarranted benefits and advantages to his co-accused.28

The OSP faults the petitioner for his attempt to mislead the Court on
the sufficiency of the allegations in the information, by conveniently
failing to cite the phrase "acting with evident bad faith and manifest
partiality" when the petitioner quoted the "relevant" portions of the
information in his petition.

Citing Juan v. People,29 the OSP argues that while no actual pre-
suspension hearing was conducted, the events preceding the issuance
of the suspension order already satisfied the purpose of conducting a
pre-suspension hearing – i.e., basically, to determine the validity of
the information. Here, the petitioner was afforded his right to
preliminary investigation both by the Ombudsman and by the OSP
(when the petitioner moved for a reinvestigation with the
Sandiganbayan); the acts for which the petitioner was charged
constitute a violation of R.A. No. 3019 and Title VII, Book II of the
Revised Penal Code; and the petitioner already moved to quash the
information, although unsuccessfully, after he had been declared to
have waived his right to submit countervailing evidence in the
reinvestigation by the OSP.30

ISSUES

There are only two issues presented for our resolution:

 1. Whether the information, charging the petitioner with
violation of Section 3(e) of R.A. No. 3019, is valid; and

2. If it is valid, whether the absence of an actual pre-suspension

hearing renders invalid the suspension order against the
petitioner.

THE COURT’S RULING

We dismiss the petition for failure to establish any grave abuse of

discretion in the issuance of the assailed resolutions.

The information for violation of R.A. No. 3019 is valid

In deference to the constitutional right of an accused to be informed

of the nature and the cause of the accusation against him, 31 Section 6,
Rule 110 of the Revised Rules of Criminal Procedure (Rules)32 requires,
inter alia, that the information shall state the designation of the
offense given by the statute and the acts or omissions imputed which
constitute the offense charged. Additionally, the Rules requires that
these acts or omissions and its attendant circumstances "must be
stated in ordinary and concise language" and "in terms sufficient to
enable a person of common understanding to know what offense is
being charged x x x and for the court to pronounce judgment."33

The test of the information’s sufficiency is whether the crime is

described in intelligible terms and with such particularity with
reasonable certainty so that the accused is duly informed of the
offense charged. In particular, whether an information validly charges
an offense depends on whether the material facts alleged in the
complaint or information shall establish the essential elements of the
offense charged as defined in the law. The raison d’etre of the
requirement in the Rules is to enable the accused to suitably prepare
his defense.34

In arguing against the validity of the information, the petitioner

appears to go beyond the standard of a "person of common
understanding" in appreciating the import of the phrase "acting with
evident bad faith and manifest partiality." A reading of the
information clearly reveals that the phrase "acting with evident bad
faith and manifest partiality" was merely a continuation of the prior
allegation of the acts of the petitioner, and that he ultimately acted
with evident bad faith and manifest partiality in giving unwarranted
benefits and advantages to his co-accused private individuals. This is
what a plain and non-legalistic reading of the information would
yield.

Notably, in his petition, the petitioner would have us believe that this
elemental phrase was actually omitted in the information 35 when, in
his reaction to the OSP’s comment, what the petitioner actually
disputes is simply the clarity of the phrase’s position, in relation with
the other averments in the information. Given the supposed ambiguity
of the subject being qualified by the phrase "acting with evident bad
faith and manifest partiality," the remedy of the petitioner, if at all, is
merely to move for a bill of particulars and not for the quashal of an
information which sufficiently alleges the elements of the offense
charged.36

The pre-suspension order is valid

Section 13 of R.A. No. 3019 reads:

Section 13. Suspension and loss of benefits. Any public officer against
whom any criminal prosecution under a valid information under this
Act or under the provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office. Should he be
convicted by final judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to
receive during suspension, unless in the meantime administrative
proceedings have been filed against him.

While the suspension of a public officer under this provision is

mandatory,37 the suspension requires a prior hearing to determine
"the validity of the information"38 filed against him, "taking into
account the serious and far reaching consequences of a suspension of
an elective public official even before his conviction."39 The accused
public official’s right to challenge the validity of the information
before a suspension order may be issued includes the right to
challenge the (i) validity of the criminal proceeding leading to the
filing of an information against him, and (ii) propriety of his
prosecution on the ground that the acts charged do not constitute a
violation of R.A. No. 3019 or of the provisions on bribery of the
Revised Penal Code.40
In Luciano v. Mariano41 that the petitioner relied upon, the Court
required, "by way of broad guidelines for the lower courts in the
exercise of the power of suspension," that –

(c) …upon the filing of such information, the trial court should issue
an order with proper notice requiring the accused officer to show
cause at a specific date of hearing why he should not be ordered
suspended from office pursuant to the cited mandatory provisions of
the Act. Where either the prosecution seasonably files a motion for an
order of suspension or the accused in turn files a motion to quash the
information or challenges the validity thereof, such show-cause order
of the trial court would no longer be necessary. What is indispensable
is that the trial court duly hear the parties at a hearing held for
determining the validity of the information, and thereafter hand down
its ruling, issuing the corresponding order of suspension should it
uphold the validity of the information or withholding such suspension
in the contrary case.

(d) No specific rules need be laid down for such pre-suspension

hearing. Suffice it to state that the accused should be given a fair and
adequate opportunity to challenge the validity of the criminal
proceedings against him, e.g. that he has not been afforded the right
of due preliminary investigation; that the acts for which he stands
charged do not constitute a violation of the provisions of Republic Act
No. 3019 or of the bribery provisions of the Revised Penal Code which
would warrant his mandatory suspension from office under section 13
of the Act; or he may present a motion to quash the information on
any of the grounds provided in Rule 117 of the Rules of Court.
(Emphasis supplied)

The petitioner questions the absence of any show cause order issued
by the Sandiganbayan before his suspension in office was ordered. As
clear as the day, however, Luciano considered it unnecessary for the
trial court to issue a show cause order when the motion, seeking the
suspension of the accused pendente lite, has been submitted by the
prosecution, as in the present case.

The purpose of the law in requiring a pre-suspension hearing is to

determine the validity of the information so that the trial court can
have a basis to either suspend the accused and proceed with the trial
on the merits of the case, withhold the suspension and dismiss the
case, or correct any part of the proceedings that impairs its
validity.1âwphi1 That hearing is similar to a challenge to the validity
of the information by way of a motion to quash.42

While a pre-suspension hearing is aimed at securing for the accused

fair and adequate opportunity to challenge the validity of the
information or the regularity of the proceedings against
him,43 Luciano likewise emphasizes that no hard and fast rule exists in
regulating its conduct.44 With the purpose of a pre-suspension hearing
in mind, the absence of an actual hearing alone cannot be
determinative of the validity of a suspension order.

In Bedruz v. Sandiganbayan,45 the Court considered the opposition of

the accused (to the prosecution’s motion to suspend pendente lite) as
sufficient to dispense with the need to actually set the prosecution’s
motion for hearing. The same conclusion was reached in Juan v.
People,46 where the Court ruled:

In the case at bar, while there was no pre-suspension hearing held to

determine the validity of the Informations that had been filed against
petitioners, we believe that the numerous pleadings filed for and
against them have achieved the goal of this procedure. The right to
due process is satisfied nor just by an oral hearing but by the filing
and the consideration by the court of the parties' pleadings,
memoranda and other position papers.

Since a pre-suspension hearing is basically a due process requirement,

when an accused public official is given an adequate opportunity to be
heard on his possible defenses against the mandatory suspension
under R.A. No. 3019, then an accused would have no reason to
complain that no actual hearing was conducted.47 It is well settled that
"to be heard" does not only mean oral arguments in court; one may be
heard also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, has been accorded, no denial of
procedural due process exists.48

In the present case, the petitioner (i) filed his Vigorous Opposition (to
the OSP’s Motion to Suspend Accused Pendente Lite), and after
receiving an adverse ruling from the Sandiganbayan, (ii) moved for
reconsideration of the suspension order issued against him, and (iii)
filed a Reply to the OSP’s Opposition to his plea for
reconsideration.49 Given this opportunity, we find that the petitioner’s
continued demand for the conduct of an actual pre-suspension hearing
– based on the same alleged "defect in the information,"50 which we
have found wanting – has legally nothing to anchor itself on.

Another reason that militates against the petitioner’s position relates

to the nature of Section 13 of R.A. No. 3019; it is not a penal provision
that would call for a liberal interpretation in favor of the accused
public official and a strict construction against the State. 51 The
suspension required under this provision is not a penalty, as it is not
imposed as a result of judicial proceedings; in fact, if acquitted, the
accused official shall be entitled to reinstatement and to the salaries
and benefits which he failed to receive during his suspension.52

Rather, the suspension under Section 13 of R.A. No. 3019 is a mere

preventive measure53 that arises from the legal presumption that
unless the accused is suspended, he may frustrate his prosecution or
commit further acts of malfeasance or do both, in the same way that
upon a finding that there is probable cause to believe that a crime has
been committed and that the accused is probably guilty thereof, the
law requires the judge to issue a warrant for the arrest of the
accused.54

Suspension under R.A. No. 3019 being a mere preventive measure

whose duration shall in no case exceed ninety (90) days,55 the
adequacy of the opportunity to contest the validity of the information
and of the proceedings that preceded its filing vis-à-vis the merits of
the defenses of the accused cannot be measured alone by the absence
or presence of an actual hearing. An opportunity to be heard on one’s
defenses, however unmeritorious it may be, against the suspension
mandated by law equally and sufficiently serves both the due process
right of the accused and the mandatory nature of the suspension
required by law.

Lest it be forgotten, Section 13 of R.A. No. 3019 reinforces the

principle enshrined in the Constitution that a public office is a public
trust.56 In light of the constitutional principle underlying the
imposition of preventive suspension of a public officer charged under
a valid information and the nature of this suspension, the petitioner’s
demand for a trial-type hearing in the present case would only
overwhelmingly frustrate, rather than promote, the orderly and
speedy dispensation of justice.

WHEREFORE, we hereby DISMISS the petition for lack of merit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 199877 August 13, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ARTURO LARA y ORBISTA, Accused-Appellant.

VILLARAMA, JR.,*

DECISION

REYES, J.:

This is an automatic appeal from the Decision1 dated July 28, 2011 of
the Court of Appeals (CA) in CA-G.R. CR HC No. 03685. The CA
affirmed the Decision2 dated October 1, 2008 of the Regional Trial
Court (RTC), Pasig City, Branch 268, finding Arturo Lara (Lara) guilty
beyond reasonable doubt of robbery with homicide.

On June 14, 2001, an Information3 charging Lara with robbery with

homicide was filed with the RTC:

On or about May 31, 2001, in Pasig City, and within the jurisdiction of
this Honorable Court, the accused, armed with a gun, conspiring and
confederating together with one unidentified person who is still at-
large, and both of them mutually helping and aiding one another, with
intent to gain, and by means of force, violence and intimidation, did
then and there wilfully, unlawfully and feloniously take, steal and
divest from Joselito M. Bautista cash money amounting to ₱
230,000.00 more or less and belonging to San Sebastian Allied
Services, Inc. represented by Enrique Sumulong; that on the occasion
of said robbery, the said accused, with intent to kill, did then and
there wilfully, unlawfully and feloniously attack, assault, and shoot
said Joselito M. Bautista with the said gun, thereby inflicting upon the
latter mortal wounds which directly caused his death.
Contrary to law.4

Following Lara’s plea of not guilty, trial ensued. The prosecution

presented three (3) witnesses: Enrique Sumulong (Sumulong), SPO1
Bernard Cruz (SPO1 Cruz) and PO3 Efren Calix (PO3 Calix).

Sumulong testified that: (a) he was an accounting staff of San

Sebastian Allied Services, Inc. (San Sebastian); (b) on May 31, 2001
and at around 9:00 in the morning, he withdrew the amount of ₱
230,000.00 from the Metrobank-Mabini Branch, Pasig City to defray
the salaries of the employees of San Sebastian; (c) in going to the
bank, he rode a pick-up and was accompanied by Virgilio Manacob
(Manacob), Jeff Atie (Atie) and Joselito Bautista (Bautista); (d) he
placed the amount withdrawn in a black bag and immediately left the
bank; (e) at around 10:30 in the morning, while they were at the
intersection of Mercedes and Market Avenues, Pasig City, Lara
suddenly appeared at the front passenger side of the pick-up and
pointed a gun at him stating, "Akin na ang pera, iyong bag, nasaan?";
(f) Bautista, who was seated at the back, shouted, "Wag mong ibigay";
(g) heeding Bautista’s advice, he threw the bag in Bautista’s direction;
(h) after getting hold of the bag, Bautista alighted from the pick-up
and ran; (i) seein Bautista, Lara ran after him while firing his gun; (j)
when he had the chance to get out of the pick-up, he ran towards
Mercedes Plaza and called up the office of San Sebastian to relay the
incident; (k) when he went back to where the pick-up was parked, he
went to the rear portion of the vehicle and saw blood on the ground;
(l) he was informed by one bystander that Bautista was shot and the
bag was taken away from him; (m) when barangay officials and the
police arrived, he and his two (2) other companions were brought to
the police station for investigation; (n) on June 7, 2001, while on his
way to Barangay Maybunga, Pasig City, he saw Lara walking along Dr.
Pilapil Street, Barangay San Miguel, Pasig City; (o) he alerted the
police and Lara was thereafter arrested; and (p) at the police station,
he, Atie and Manacob identified Lara as the one who shot and robbed
them of San Sebastian’s money.5

SPO1 Cruz testified that: (a) he was assigned at the Follow-Up Unit of
the Pasig City Police Station; (b) at around 7:55 in the evening of June
7, 2001, Sumulong went to the police station and informed him that he
saw Lara walking along Dr. Pilapil Street; (c) four (4) police officers
and Sumulong went to Dr. Pilapil Street where they saw Lara, who
Sumulong identified; (d) they then approached Lara and invited him
for questioning; (e) at the police station, Lara was placed in a line-up
where he was positively identified by Sumulong, Manacob and Atie;
and (f) after being identified, Lara was informed of his rights and
subsequently detained.6

PO3 Calix testified that: (a) he was a member of the Criminal

Investigation Unit of the Pasig City Police Station; (b) on May 31,
2001, he was informed of a robbery that took place at the corner of
Mercedes and Market Avenues, Pasig City; (c) he, together with three
(3) other police officers, proceeded to the crime scene; (d) upon
arriving thereat, one of the police officers who were able to respond
ahead of them, handed to him eleven (11) pieces of empty shells and
six (6) deformed slugs of a 9mm pistol; (e) as part of his
investigation, he interviewed Sumulong, Atie, Manacob at the police
station; and (f) before Bautista died, he was able to interview Bautista
at the hospital where the latter was brought after the incident. 7

In his defense, Lara testified that: (a) he was a plumber who resided
at Dr. Pilapil Street, San Miguel, Pasig City; (b) on May 31, 2001, he
was at his house, digging a sewer trench while his brother, Wilfredo,
was constructing a comfort room; (c) they were working from 8:00 in
the morning until 3:00 in the afternoon; (d) on June 7, 2001 and at
around 7:00 in the evening, while he was at the house of one of his
cousins, police officers arrived and asked him if he was Arturo Lara;
(e) after confirming that he was Arturo Lara, the police officers asked
him to go with them to the Barangay Hall; (f) he voluntarily went with
them and while inside the patrol car, one of the policemen said, "You
are lucky, we were able to caught you in your house, if in another
place we will kill you" (sic); (g) he was brought to the police station
and not the barangay hall as he was earlier told where he was
investigated for robbery with homicide; (h) when he told the police
that he was at home when the subject incident took place, the police
challenged him to produce witnesses; (i) when his witnesses arrived
at the station, one of the police officers told them to come back the
following day; (j) while he was at the police line-up holding a name
plate, a police officer told Sumulong and Atie, "Ituru nyo na yan at
uuwi na tayo"; and (k) when his witnesses arrived the following day,
they were told that he will be subjected to an inquest.8

To corroborate his testimony, Lara presented one of his neighbors,

Simplicia Delos Reyes. She testified that on May 31, 2001, while she
was manning her store, she saw Lara working on a sewer trench from
9:00 in the morning to 5:00 in the afternoon.9 Lara also presented his
sister, Edjosa Manalo, who testified that he was working on a sewer
line the whole day of May 31, 2001.10

On October 1, 2008, the RTC convicted Lara of robbery with homicide

in a Decision,11 the dispositive portion of which states:

WHEREFORE, premises considered, this Court finds the accused

ARTURO LARA Y Orbista GUILTY beyond reasonable doubt of the crime
of Robbery with Homicide, defined and penalized under Article 294 (1)
as amended by Republic Act 7659, and is hereby sentenced to suffer
the penalty of imprisonment of reclusion perpetua, with all the
accessory penalties prescribed by law.

Accused is further ordered to indemnify the heirs of the deceased the

sum of Php50,000.00 as civil indemnity and Php230,000.00
representing the money carted by the said accused.

SO ORDERED.12

The RTC rejected Lara’s defense of alibi as follows:

The prosecution’s witness Enrique Sumulong positively identified

accused Arturo Lara as the person who carted away the payroll money
of San Sebastian Allied Services, Inc., on May 31, 2001 at around 10:30
o’clock in the morning along the corner of Mercedez and Market Ave.,
Pasig City and the one who shot Joselito Bautista which caused his
instantaneous death on the same day. As repeatedly held by the
Supreme Court, "For alibi to prosper, an accused must show he was at
some other place for such a period of time that it was impossible for
him to have been at the crime scene at the time of the commission of the
crime" (People versus Bano, 419 SCRA 697). Considering the proximity
of the distance between the place of the incident and the residence of
the accused where he allegedly stayed the whole day of May 31, 2001,
it is not physically impossible for him to be at the crime scene within
the same barangay. The positive identification of the accused which
were categorical and consistent and without any showing of ill motive
on the part of the eyewitnesses, should prevail over the alibi and
denial of the accused whose testimony was not substantiated by clear
and convincing evidence (People versus Aves 420 SCRA
259).13 (Emphasis supplied)

On appeal, Lara pointed out several errors that supposedly attended

his conviction. First, that he was arrested without a warrant under
circumstances that do not justify a warrantless arrest rendered void
all proceedings including those that led to his conviction. Second, he
was not assisted by counsel when the police placed him in a line-up to
be identified by the witnesses for the prosecution in violation of
Section 12, Article III of the Constitution. The police line-up is part of
custodial investigation and his right to counsel had already attached.
Third, the prosecution failed to prove his guilt beyond reasonable
doubt. Specifically, the prosecution failed to present a witness who
actually saw him commit the alleged acts. Sumulong merely presumed
that he was the one who shot Bautista and who took the bag of money
from him. The physical description of Lara that Sumulong gave to the
police was different from the one he gave during the trial, indicating
that he did not have a fair glimpse of the perpetrator. Moreover, this
gives rise to the possibility that it was his unidentified companion
who shot Bautista and took possession of the money. Hence, it cannot
be reasonably claimed that his conviction was attended with moral
certainty. Fourth, the trial court erred in discounting the testimony of
his witnesses. Without any showing that they were impelled by
improper motives in testifying in his favor, their testimonies should
have been given the credence they deserve. While his two (2)
witnesses were his sister and neighbor, this does not by itself suggest
the existence of bias or impair their credibility.

The CA affirmed Lara’s conviction. That Lara was supposedly arrested

without a warrant may not serve as a ground to invalidate the
proceedings leading to his conviction considering its belated
invocation. Any objections to the legality of the warrantless arrest
should have been raised in a motion to quash duly filed before the
accused enters his plea; otherwise, it is deemed waived. Further, that
the accused was illegally arrested is not a ground to set aside
conviction duly arrived at and based on evidence that sufficiently
establishes culpability:

Appellant’s avowal could hardly wash.

It is a shopworn doctrine that any objection involving a warrant of

arrest or the acquisition of jurisdiction over the person of an
accused must be made before he enters his plea, otherwise the
objection is deemed waived. In voluntarily submitting himself to the
court by entering a plea, instead of filing a motion to quash the
information for lack of jurisdiction over his person, accused-appellant
is deemed to have waived his right to assail the legality of his arrest.
Applying the foregoing jurisprudential touchstone, appellant is
estopped from questioning the validity of his arrest since he never
raised this issue before arraignment or moved to quash the
Information.

What is more, the illegal arrest of an accused is not sufficient cause

for setting aside a valid judgment rendered upon a sufficient
complaint after trial free from error. The warrantless arrest, even if
illegal, cannot render void all other proceedings including those
leading to the conviction of the appellants and his co-accused, nor can
the state be deprived of its right to convict the guilty when all the
facts on record point to their culpability.14 (Citations omitted)

As to whether the identification of Lara during the police line-up is

inadmissible as his right to counsel was violated, the CA ruled that
there was no legal compulsion to afford him a counsel during a police
line-up since the latter is not part of custodial investigation.

Appellant’s assertion that he was under custodial investigation at the

time he was identified in a police line-up and therefore had the right
to counsel does not hold water. Ingrained in our jurisdiction is the
rule that an accused is not entitled to the assistance of counsel in a
police line-up considering that such is usually not a part of custodial
investigation. An exception to this rule is when the accused had been
the focus of police attention at the start of the investigation. In the
case at bench, appellant was identified in a police line-up by
prosecution witnesses from a group of persons gathered for the
purpose. However, there was no proof that appellant was interrogated
at all or that a statement or confession was extracted from him. A
priori, We refuse to hearken to appellant’s hollow cry that he was
deprived of his constitutional right to counsel given the hard fact that
during the police line-up, the accusatory process had not yet
commenced.

Assuming ex hypothesi that appellant was subjected to interrogation

sans counsel during the police line-up, it does not in any way affect
his culpability. Any allegation of violation of rights during custodial
investigation is relevant and material only to cases in which an
extrajudicial admission or confession extracted from the accused
becomes the basis of their conviction. Here, appellant was convicted
based on the testimony of a prosecution witness and not on his alleged
uncounseled confession or admission.15 (Citations omitted)
The CA addressed Lara’s claim that the prosecution’s failure to
present a witness who actually saw him commit the crime charged as
follows:

Third. Appellant takes umbrage at the alleged failure of the

prosecution to present an eyewitness to prove that he shot the victim
and took the money.

Such posture is unpersuasive.

Contrary to appellant’s assertion, prosecution witness Sumulong

actually saw him shoot Bautista, the victim. Sumulong vividly
recounted, viz:

"Q When you said that "tinutukan ka", aside from this act was
there any other words spoken by this person?

A There was, sir.

Q What did he say?

A "Nasaan ang bag ilabas mo yung pera", sir.

Q Where were you looking when this person approached you?

A I was looking at his face, sir.

Q And upon hearing those words, what did you do?

A I put out the money, sir, because I got afraid at that time.

Q Did you hand over the black bag containing the money to him?

A No, sir, because one of my companion(s) shouted not to give

the money or the bag so I immediately threw away the bag at
the back seat, sir.

Q And how long approximately was that person standing by your

car window?

A Five (5) to ten (10) minutes, sir.

Q And after you have thrown the black bag containing money to
the back of the vehicle, what did that person do?
A I saw Joey alight(ed) from the vehicle carrying the bag and ran
away, sir, and I also saw somebody shoot a gun?

Q Who was firing the gun?

A The one who held-up us, sir.

Q By how, do you know his name?

A No, sir.

Q But if you can see him again, (were) you be able to recognize
him?

A Yes, sir.

Q If he is in the courtroom, will you be able to recognize him?

A Yes, sir.

Q Please look around and please tell this Honorable Court

whether indeed the person you saw holding you up at that time
is in court?

A Yes, sir.

Q Will you please stand up and tap his shoulder to identify him?

Interpreter:

The witness tap the shoulder of a person sitting on the first

bench of the courtroom wearing yellow t-shirt and black pants
who when ask identify himself as Arturo Lara (sic).

Q And when as you said Joey got the bag. Alighted from the
vehicle and ran away with it, what did the accused do? (sic)

A He shot Joey while running around our vehicle, sir.

Q Around how many shots according to your recollection were

fired?

A There were several shots, more or less nine (9) shots, sir.
 x x x x x x"

"Q So, you did not personally notice what had transpired or
happened after you stepped down from the Nissan pick-up, that
is correct?

A There was, sir, my companion Joselito Bautista was shot.

Q When you heard the gunfire, you were already proceeding

towards that store to call your office by phone, that is correct?

A Not yet, sir, we were still inside the vehicle.

Q And was Joselito Bautista at the rear of the Nissan Sentra

when you heard this gunfire?

A Yes, sir.

Q And so he was at the back, so the shooter was also at the back
of the vehicle, that is correct?

A Yes, sir, he went towards the rear portion of the vehicle, he

followed Joselito Bautista and shot him.

Q So, to be clear, when Joselito Bautista ran to the rear, this

alleged holdup(p)er followed him?

A Yes, sir.

Q And that was the time(,) you heard this gunfire? A Yes, sir.

Q So, you did not personally see who fired that firearm?

A Because at that time he was the one holding the gun, sir.

Q So, you are presuming that he was the one who fired the gun
because he was holding the gun, am I correct?

A Yes, sir."

xxxx

Under Section 4, Rule 133, of the Rules of Court, circumstantial

evidence is sufficient for conviction if the following requisites concur:
 (a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven;
and

(c) The combination of all the circumstances is such as to

produce a conviction beyond reasonable doubt.

Here, the following circumstantial evidence are tellingly sufficient to

prove that the guilt of appellant is beyond reasonable doubt, viz:

1. While the vehicle was at the intersection of Mercedes and Market

Avenues, Pasig City, appellant suddenly emerged and pointed a gun at
prosecution witness Sumulong, demanding from him to produce the
bag containing the money.

2. Prosecution witness Sumulong threw the bag to the victim who was
then seated at the backseat of the vehicle.

3. The victim alighted from vehicle carrying the bag.

4. Appellant chased and fired several shots at the victim.

5. The victim sustained several gunshot wounds.

6. The police officers recovered from the scene of the crime six
deformed empty shells.16 (Citations omitted and emphasis supplied)

Finally, the CA found that Lara’s alibi failed to convince. Specifically:

Deeply embedded in our jurisprudence is the rule that positive

identification of the accused, where categorical and consistent,
without any showing of ill motive on the part of the eyewitness
testifying, should prevail over the alibi and denial of appellants,
whose testimonies are not substantiated by clear and convincing
evidence.

All the more, to establish alibi the accused must prove (a) that he was
present at another place at the time of the perpetration of the crime,
and (b) that it was physically impossible for him to be at the scene of
the crime. Physical impossibility "refers to the distance between the
place where the accused was when the crime transpired and the place
where it was committed, as well as the facility of access between the
two places. Appellant miserably failed to prove the physical
impossibility of his presence at the locus criminis at the time of the
perpetration of the felonious act. He himself admitted that his house
was just a stone’s throw (about three minutes away) from the crime
scene.17 (Citations omitted)

In a Resolution18 dated February 1, 2012, this Court accepted the

appeal as the penalty imposed was reclusion perpetua and the parties
were afforded an opportunity to file their supplemental briefs. Both
parties waived their right to do so, stating that they would adopt the
allegations in their respective briefs that they filed with the CA.

Issues

The present review of Lara’s conviction for robbery with homicide

gives rise to the following issues:

a. whether the identification made by Sumulong, Atie and

Manacob in the police line-up is inadmissible because Lara stood
therein without the assistance of counsel;

b. whether Lara’s supposedly illegal arrest may be raised for the

first time on appeal for the purpose of nullifying his conviction;

c. whether there is sufficient evidence to convict Lara; and

d. whether Lara’s alibi can be given credence so as to exonerate

him from the crime charged.

Our Ruling

This Court resolves to deny the appeal.

Jurisdiction over the person of the accused may be acquired through

compulsory process such as a warrant of arrest or through his
voluntary appearance, such as when he surrenders to the police or to
the court.19 Any objection to the arrest or acquisition of jurisdiction
over the person of the accused must be made before he enters his
plea, otherwise the objection is deemed waived. An accused submits to
the jurisdiction of the trial court upon entering a plea and
participating actively in the trial and this precludes him invoking any
irregularities that may have attended his arrest.20
Furthermore, the illegal arrest of an accused is not a sufficient ground
to reverse and set aside a conviction that was arrived upon a
complaint duly filed and a trial conducted without error. 21 As Section
9, Rule 117 of the Revised Rules of Criminal Procedure provides:

Sec. 9. Failure to move to quash or to allege any ground therefor. — The

failure of the accused to assert any ground of a motion to quash before
he pleads to the complaint or information, either because he did not
file a motion to quash or failed to allege the same in said motion, shall
be deemed a waiver of any objections except those based on the
grounds provided for in paragraphs (a), (b), (g) and (i) of Section 3 of
this Rule.

II

Contrary to Lara’s claim, that he was not provided with counsel when
he was placed in a police line-up did not invalidate the proceedings
leading to his conviction. That he stood at the police line-up without
the assistance of counsel did not render Sumulong’s identification of
Lara inadmissible. The right to counsel is deemed to have arisen at the
precise moment custodial investigation begins and being made to
stand in a police line-up is not the starting point or a part of custodial
investigation. As this Court previously ruled in People v. Amestuzo:22

The contention is not meritorious. The guarantees of Sec. 12 (1), Art.

III of the 1987 Constitution, or the so-called Miranda rights, may be
invoked only by a person while he is under custodial investigation.
Custodial investigation starts when the police investigation is no
longer a general inquiry into an unsolved crime but has begun to focus
on a particular suspect taken into custody by the police who starts the
interrogation and propounds questions to the person to elicit
incriminating statements. Police line-up is not part of the custodial
investigation; hence, the right to counsel guaranteed by the
Constitution cannot yet be invoked at this stage. This was settled in
the case of People vs. Lamsing and in the more recent case of People
vs. Salvatierra. The right to be assisted by counsel attaches only
during custodial investigation and cannot be claimed by the accused
during identification in a police line-up because it is not part of the
custodial investigation process. This is because during a police line-
up, the process has not yet shifted from the investigatory to the
accusatory and it is usually the witness or the complainant who is
interrogated and who gives a statement in the course of the line-
up.23 (Citations omitted)
III

It is apparent from the assailed decision of the CA that the finding of

guilt against Lara is based on circumstantial evidence. The CA
allegedly erred in this wise considering that only direct and not
circumstantial evidence can overcome the presumption of innocence.

However, well-settled is the rule that direct evidence of the

commission of the crime is not the only matrix wherefrom a trial
court may draw its conclusion and finding of guilt. Even in the
absence of direct evidence, conviction can be had if the established
circumstances constitute an unbroken chain, consistent with each
other and to the hypothesis that the accused is guilty, to the exclusion
of all other hypothesis that he is not.24

Under Section 4, Rule 133 of the Revised Rules on Criminal Procedure,

circumstantial evidence sufficed to convict upon the concurrence of
the following requisites: (a) there is more than one circumstance; (b)
the facts from which the inferences are derived are proven; and (c)
the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.

It is not only by direct evidence that an accused may be convicted of

the crime for which he is charged. Resort to circumstantial evidence is
essential since to insist on direct testimony would, in many cases,
result in setting felons free and denying proper protection to the
community.25

As the CA correctly ruled, the following circumstances established by

the evidence for the prosecution strongly indicate Lara’s guilt: (a)
while the vehicle Sumulong, Atie, Manacob and Bautista were riding
was at the intersection of Mercedes and Market Avenues, he appeared
at the front passenger side thereof armed with a gun; (b) while
pointing the gun at Sumulong who was at the front passenger seat,
Lara demanded that Sumulong give him the bag containing the money;
(c) instead of giving the bag to Lara, Sumulong gave it to Bautista who
was seated at the back of the pick-up; (d) when Bautista got hold of
the bag, he alighted and ran towards the back of the pick-up; (e) Lara
ran after Bautista and while doing so, fired his gun at Bautista’s
direction; (f) Bautista sustained several gunshot wounds; and (g)
Bautista’s blood was on the crime scene and empty shells were
recovered therefrom.
Indeed, in cases of robbery with homicide, the taking of personal
property with intent to gain must itself be established beyond
reasonable doubt. Conclusive evidence proving the physical act of
asportation by the accused must be presented by the prosecution. It
must be shown that the original criminal design of the culprit was
robbery and the homicide was perpetrated with a view to the
consummation of the robbery by reason or on the occasion of the
robbery.26 The mere presence of the accused at the crime scene is not
enough to implicate him. It is essential to prove the intent to rob and
the use of violence was necessary to realize such intent.

In this case, Lara’s intent to gain is proven by Sumulong’s positive

narration that it was Lara who pointed the gun at him and demanded
that the bag containing the money be turned over to him. That Lara
resorted to violence in order to actualize his intent to gain is proven
by Sumulong’s testimony that he saw Lara fire the gun at the direction
of Bautista, who was running away from the pick-up in order to
prevent Lara from taking possession of the money.

Notably, the incident took place in broad daylight and in the middle of
a street. Thus, where considerations of visibility are favorable and the
witness does not appear to be biased against the accused, his or her
assertions as to the identity of the malefactor should be normally
accepted.27

Lara did not allege, much less, convincingly demonstrate that

Sumulong was impelled by improper or malicious motives to impute
upon him, however perjurious, such a serious charge. Thus, his
testimony, which the trial court found to be forthright and credible, is
worthy of full faith and credit and should not be disturbed. If an
accused had nothing to do with the crime, it is against the natural
order of events and of human nature and against the presumption of
good faith that a prosecution witness would falsely testify against the
former.28

IV

In view of Sumulong’s positive identification of Lara, the CA was

correct in denying Lara’s alibi outright. It is well-settled that positive
identification prevails over alibi, which is inherently a weak defense.
Such is the rule, for as a defense, alibi is easy to concoct, and difficult
to disapprove.29
Moreover, in order for the defense of alibi to prosper, it is not enough
to prove that the accused was somewhere else when the offense was
committed, but it must likewise be demonstrated that he was so far
away that it was not possible for him to have been physically present
at the place of the crime or its immediate vicinity at the time of its
commission. Due to its doubtful nature, alibi must be supported by
clear and convincing proof.

In this case, the proximity of Lara’s house at the scene of the crime
wholly negates his alibi. Assuming as true Lara’s claim and that of his
witnesses that he was digging a sewer trench on the day of the
incident, it is possible that his witnesses may not have noticed him
leaving and returning given that the distance between his house and
the place where the subject incident took place can be negotiated,
even by walking, in just a matter of minutes. Simply put, Lara and his
witnesses failed to prove that it is well-nigh impossible for him to be
at the scene of the crime.

In fine, the assailed decision of the CA is affirmed in all respects.

WHEREFORE, premises considered, the Decision dated July 28, 2011

of the Court of Appeals in CA-G.R. CR HC No. 03685 is
hereby AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional
Trial Court, First Judicial Region, Baguio City, and FELIPE
RAMOS, respondents.

Nelson Lidua for private respondent.

NARVASA, J.:

What has given rise to the controversy at bar is the equation by the
respondent Judge of the right of an individual not to "be compelled to
be a witness against himself" accorded by Section 20, Article III of the
Constitution, with the right of any person "under investigation for the
commission of an offense . . . to remain silent and to counsel, and to be
informed of such right," granted by the same provision. The relevant
facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the

Philippine Airlines (PAL), assigned at its Baguio City station. It having
allegedly come to light that he was involved in irregularities in the
sales of plane tickets, 1 the PAL management notified him of an
investigation to be conducted into the matter of February 9, 1986.
That investigation was scheduled in accordance with PAL's Code of
Conduct and Discipline, and the Collective Bargaining Agreement
signed by it with the Philippine Airlines Employees' Association
(PALEA) to which Ramos pertained.2

On the day before the investigation, February 8,1986, Ramos gave to

his superiors a handwritten notes 3 reading as follows:

2-8-86

TO WHOM IT MAY CONCERN:

THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS

WILLING TO SETTLE IRREGULARITIES ALLEGEDLY
CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.)
SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON
OR BEFORE 1700/9 FEB 86.

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At the investigation of February 9, 1986, conducted by the PAL Branch

Manager in Baguio City, Edgardo R. Cruz, in the presence of Station
Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and
PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed
"of the finding of the Audit Team." Thereafter, his answers in
response to questions by Cruz, were taken down in writing. Ramos'
answers were to the effect inter alia that he had not indeed made
disclosure of the tickets mentioned in the Audit Team's findings, that
the proceeds had been "misused" by him, that although he had
planned on paying back the money, he had been prevented from doing
so, "perhaps (by) shame," that he was still willing to settle his
obligation, and proferred a "compromise x x to pay on staggered
basis, (and) the amount would be known in the next investigation;"
that he desired the next investigation to be at the same place, "Baguio
CTO," and that he should be represented therein by "Shop stewardees
ITR Nieves Blanco;" and that he was willing to sign his statement (as
he in fact afterwards did). 4 How the investigation turned out is not
dealt with the parties at all; but it would seem that no compromise
agreement was reached much less consummated.

About two (2) months later, an information was filed against Felipe
Ramos charging him with the crime of estafa allegedly committed in
Baguio City during the period from March 12, 1986 to January 29,
1987. In that place and during that time, according to the
indictment, 5 he (Ramos) —

.. with unfaithfulness and/or abuse of confidence, did then

and there willfully ... defraud the Philippine Airlines, Inc.,
Baguio Branch, ... in the following manner, to wit: said
accused ... having been entrusted with and received in
trust fare tickets of passengers for one-way trip and
round-trip in the total amount of P76,700.65, with the
express obligation to remit all the proceeds of the sale,
account for it and/or to return those unsold, ... once in
possession thereof and instead of complying with his
obligation, with intent to defraud, did then and there ...
misappropriate, misapply and convert the value of the
tickets in the sum of P76,700.65 and in spite of repeated
demands, ... failed and refused to make good his
obligation, to the damage and prejudice of the offended
party .. .

On arraignment on this charge, Felipe Ramos entered a plea of "Not

Guilty," and trial thereafter ensued. The prosecution of the case was
undertaken by lawyers of PAL under the direction and supervision of
the Fiscal.

At the close of the people's case, the private prosecutors made a

written offer of evidence dated June 21, 1988,6 which included "the
(above mentioned) statement of accused Felipe J. Ramos taken on
February 9, 1986 at PAL Baguio City Ticket Office," which had been
marked as Exhibit A, as well as his "handwritten admission x x given
on February 8, 1986," also above referred to, which had been marked
as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s

Evidence."7 Particularly as regards the peoples' Exhibit A, the
objection was that "said document, which appears to be a confession,
was taken without the accused being represented by a lawyer."
Exhibit K was objected to "for the same reasons interposed under
Exhibits 'A' and 'J.'

By Order dated August 9, 1988, 8 the respondent judge admitted all

the exhibits "as part of the testimony of the witnesses who testified in
connection therewith and for whatever they are worth," except
Exhibits A and K, which it rejected. His Honor declared Exhibit A
"inadmissible in evidence, it appearing that it is the statement of
accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City
Ticket Office, in an investigation conducted by the Branch Manager x x
since it does not appear that the accused was reminded of this
constitutional rights to remain silent and to have counsel, and that
when he waived the same and gave his statement, it was with the
assistance actually of a counsel." He also declared inadmissible
"Exhibit K, the handwritten admission made by accused Felipe J.
Ramos, given on February 8, 1986 x x for the same reason stated in
the exclusion of Exhibit 'A' since it does not appear that the accused
was assisted by counsel when he made said admission."

The private prosecutors filed a motion for reconsideration. 9 It was

denied, by Order dated September 14, 1988. 10 In justification of said
Order, respondent Judge invoked this Court's rulings in Morales, Jr. v.
Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA
467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA
496, among others, to the effect that "in custodial investigations the
right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel," and the explicit precept
in the present Constitution that the rights in custodial investigation
"cannot be waived except in writing and in the presence of counsel."
He pointed out that the investigation of Felipe Ramos at the PAL
Baguio Station was one "for the offense of allegedly misappropriating
the proceeds of the tickets issued to him' and therefore clearly fell
"within the coverage of the constitutional provisions;" and the fact
that Ramos was not detained at the time, or the investigation was
administrative in character could not operate to except the case "from
the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now
assailed in the petition for certiorari and prohibition at bar, filed in
this Court by the private prosecutors in the name of the People of the
Philippines. By Resolution dated October 26, 1988, the Court required
Judge Ayson and Felipe Ramos to comment on the petition, and
directed issuance of a "TEMPORARY RESTRAINING ORDER . . .
ENJOINING the respondents from proceeding further with the trial
and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe
Ramos), including the issuance of any order, decision or judgment in
the aforesaid case or on any matter in relation to the same case, now
pending before the Regional Trial Court of Baguio City, Br. 6, First
Judicial Region." The Court also subsequently required the Solicitor
General to comment on the petition. The comments of Judge Ayson,
Felipe Ramos, and the Solicitor General have all been filed. The
Solicitor General has made common cause with the petitioner and
prays "that the petition be given due course and thereafter judgment
be rendered setting aside respondent Judge's Orders . . . and ordering
him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor
General has thereby removed whatever impropriety might have
attended the institution of the instant action in the name of the People
of the Philippines by lawyers de parte of the offended party in the
criminal action in question.

The Court deems that there has been full ventilation of the issue — of
whether or not it was grave abuse of discretion for respondent Judge
to have excluded the People's Exhibits A and K. It will now proceed to
resolve it.

At the core of the controversy is Section 20, Article IV of the 1973

Constitution, 11 to which respondent Judge has given a construction
that is disputed by the People. The section reads as follows:

SEC. 20. No person shall be compelled to be a witness

against himself Any person under investigation for the
commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means
which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be
inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of
rights, dealt with in the section, namely:

1) the right against self-incrimination — i.e., the right of a

person not to be compelled to be a witness against himself
— set out in the first sentence, which is a verbatim
reproduction of Section 18, Article III of the 1935
 Constitution, and is similar to that accorded by the Fifth
Amendment of the American Constitution, 12 and

2) the rights of a person in custodial interrogation, i.e.,

the rights of every suspect "under investigation for the
commission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the

individuality and disparateness of these rights. It has placed the rights
in separate sections. The right against self- incrimination, "No person
shall be compelled to be a witness against himself," is now embodied
in Section 17, Article III of the 1987 Constitution. The lights of a
person in custodial interrogation, which have been made more
explicit, are now contained in Section 12 of the same Article III.13

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20,

Article IV of the 1973 Constitution, is accorded to every person who
gives evidence, whether voluntarily or under compulsion of subpoena,
in any civil, criminal, or administrative proceeding. 14 The right is
NOT to "be compelled to be a witness against himself"

The precept set out in that first sentence has a settled meaning. 15 It
prescribes an "option of refusal to answer incriminating questions
and not a prohibition of inquiry." 16 It simply secures to a witness,
whether he be a party or not, the right to refue to answer any
particular incriminatory question, i.e., one the answer to which has a
tendency to incriminate him for some crime. However, the right can
be claimed only when the specific question, incriminatory in
character, is actually put to the witness. It cannot be claimed at any
other time. It does not give a witness the right to disregard a
subpoena, to decline to appear before the court at the time appointed,
or to refuse to testify altogether. The witness receiving a subpoena
must obey it, appear as required, take the stand, be sworn and answer
questions. It is only when a particular question is addressed to him,
the answer to which may incriminate him for some offense, that he
may refuse to answer on the strength of the constitutional guaranty.

That first sentence of Section 20, Article IV of the 1973 Constitution

does not impose on the judge, or other officer presiding over a trial,
hearing or investigation, any affirmative obligation to advise a
witness of his right against self-incrimination. It is a right that a
witness knows or should know, in accordance with the well known
axiom that every one is presumed to know the law, that ignorance of
the law excuses no one. Furthermore, in the very nature of things,
neither the judge nor the witness can be expected to know in advance
the character or effect of a question to be put to the latter. 17

The right against self-incrimination is not self- executing or

automatically operational. It must be claimed. If not claimed by or in
behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly, or impliedly, as by a
failure to claim it at the appropriate time. 18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second

right, or better said, group of rights. These rights apply to persons
"under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is what
makes these rights different from that embodied in the first sentence,
that against self-incrimination which, as aforestated, indiscriminately
applies to any person testifying in any proceeding, civil, criminal, or
administrative.

This provision granting explicit rights to persons under investigation

for an offense was not in the 1935 Constitution. It is avowedly derived
from the decision of the U.S. Supreme Court in Miranda v.
Arizona, 19 a decision described as an "earthquake in the world of law
enforcement." 20

Section 20 states that whenever any person is "under investigation for

the commission of an offense"--

1) he shall have the right to remain silent and to counsel,

and to be informed of such right, 21

2) nor force, violence, threat, intimidation, or any other

means which vitiates the free will shall be used against
him; 22 and

3) any confession obtained in violation of x x (these rights

shall be inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural
safeguards laid down for a person in police custody, "in-custody
interrogation" being regarded as the commencement of an adversary
proceeding against the suspect. 24

He must be warned prior to any questioning that he has the right to

remain silent, that anything he says can be used against him in a court
of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires. Opportunity to exercise those rights
must be afforded to him throughout the interrogation. After such
warnings have been given, such opportunity afforded him, the
individual may knowingly and intelligently waive these rights and
agree to answer or make a statement. But unless and until such
warnings and waivers are demonstrated by the prosecution at the
trial, no evidence obtained as a result of interrogation can be used
against him.

The objective is to prohibit "incommunicado interrogation of

individuals in a police-dominated atmosphere, resulting in self-
incriminating statement without full warnings of constitutional
rights." 25

The rights above specified, to repeat, exist only in "custodial

interrogations," or "in-custody interrogation of accused
26
persons." And, as this Court has already stated, by custodial
interrogation is meant "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." 27 The
situation contemplated has also been more precisely described by this
Court." 28

.. . After a person is arrested and his custodial

investigation begins a confrontation arises which at best
may be tanned unequal. The detainee is brought to an
army camp or police headquarters and there questioned
and "cross-examined" not only by one but as many
investigators as may be necessary to break down his
morale. He finds himself in strange and unfamiliar
surroundings, and every person he meets he considers
hostile to him. The investigators are well-trained and
seasoned in their work. They employ all the methods and
means that experience and study have taught them to
 extract the truth, or what may pass for it, out of the
detainee. Most detainees are unlettered and are not aware
of their constitutional rights. And even if they were, the
intimidating and coercive presence of the officers of the
law in such an atmosphere overwhelms them into silence.
Section 20 of the Bill of Rights seeks to remedy this
imbalance.

Not every statement made to the police by a person involved in some

crime is within the scope of the constitutional protection. If not made
"under custodial interrogation," or "under investigation for the
commission of an offense," the statement is not protected. Thus, in
one case, 29 where a person went to a police precinct and before any
sort of investigation could be initiated, declared that he was giving
himself up for the killing of an old woman because she was
threatening to kill him by barang, or witchcraft, this Court ruled that
such a statement was admissible, compliance with the constitutional
procedure on custodial interrogation not being exigible under the
circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

It is pertinent at this point to inquire whether the rights just

discussed, i.e., (1) that against self-incrimination and (2) those during
custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.

It seems quite evident that a defendant on trial or under preliminary

investigation is not under custodial interrogation. His interrogation by
the police, if any there had been would already have been ended at the
time of the filing of the criminal case in court (or the public
prosecutors' office). Hence, with respect to a defendant in a criminal
case already pending in court (or the public prosecutor's office), there
is no occasion to speak of his right while under "custodial
interrogation" laid down by the second and subsequent sentences of
Section 20, Article IV of the 1973 Constitution, for the obvious reason
that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary

investigation before the public prosecutor), in common with all other
persons, possesses the right against self- incrimination set out in the
first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the
right to refuse to answer a specific incriminatory question at the time
that it is put to him. 30

Additionally, the accused in a criminal case in court has other rights

in the matter of giving testimony or refusing to do so. An accused
"occupies a different tier of protection from an ordinary witness."
Under the Rules of Court, in all criminal prosecutions the defendant is
entitled among others-

1) to be exempt from being a witness against himself, 31 and 2) to

testify as witness in his own behalf; but if he offers himself as a
witness he may be cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner prejudice or
be used against him. 32

The right of the defendant in a criminal case "to be exempt from being
a witness against himself' signifies that he cannot be compelled to
testify or produce evidence in the criminal case in which he is the
accused, or one of the accused. He cannot be compelled to do so even
by subpoena or other process or order of the Court. He cannot be
required to be a witness either for the prosecution, or for a co-
accused, or even for himself. 33 In other words — unlike an ordinary
witness (or a party in a civil action) who may be compelled to testify
by subpoena, having only the right to refuse to answer a particular
incriminatory question at the time it is put to him-the defendant in a
criminal action can refuse to testify altogether. He can refuse to take
the witness stand, be sworn, answer any question. 34 And, as the law
categorically states, "his neglect or refusal to be a witness shall not in
any manner prejudice or be used against him." 35

If he should wish to testify in his own behalf, however, he may do so.

This is his right. But if he does testify, then he "may be cross-
examined as any other witness." He may be cross-examined as to any
matters stated in his direct examination, or connected therewith
. 36 He may not on cross-examination refuse to answer any question on
the ground that the answer that he will give, or the evidence he will
produce, would have a tendency to incriminate him for the crime with
which he is charged.

It must however be made clear that if the defendant in a criminal

action be asked a question which might incriminate him, not for the
crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that
specific question, on the strength of the right against self-
incrimination granted by the first sentence of Section 20, Article IV of
the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus,
assuming that in a prosecution for murder, the accused should testify
in his behalf, he may not on cross-examination refuse to answer any
question on the ground that he might be implicated in that crime of
murder; but he may decline to answer any particular question which
might implicate him for a different and distinct offense, say, estafa.

In fine, a person suspected of having committed a crime and

subsequently charged with its commission in court, has the following
rights in the matter of his testifying or producing evidence, to wit:

1) BEFORE THE CASE IS FILED IN COURT (or with the

public prosecutor, for preliminary investigation), but after
having been taken into custody or otherwise deprived of
his liberty in some significant way, and on being
interrogated by the police: the continuing right to remain
silent and to counsel, and to be informed thereof, not to be
subjected to force, violence, threat, intimidation or any
other means which vitiates the free will; and to have
evidence obtained in violation of these rights rejected; and

2) AFTER THE CASE IS FILED IN COURT — 37

a) to refuse to be a witness;

b) not to have any prejudice whatsoever result

to him by such refusal;

c) to testify in his own behalf, subject to cross-

examination by the prosecution;

d) WHILE TESTIFYING, to refuse to answer a

specific question which tends to incriminate
him for some crime other than that for which
he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has

misapprehended the nature and import of the disparate rights set
forth in Section 20, Article IV of the 1973 Constitution. He has taken
them as applying to the same juridical situation, equating one with
the other. In so doing, he has grossly erred. To be sure, His Honor
sought to substantiate his thesis by arguments he took to be cogent
and logical. The thesis was however so far divorced from the actual
and correct state of the constitutional and legal principles involved as
to make application of said thesis to the case before him tantamount
to totally unfounded, whimsical or capricious exercise of power. His
Orders were thus rendered with grave abuse of discretion. They
should be as they are hereby, annulled and set aside.

It is clear from the undisputed facts of this case that Felipe Ramos
was not in any sense under custodial interrogation, as the term should
be properly understood, prior to and during the administrative inquiry
into the discovered irregularities in ticket sales in which he appeared
to have had a hand. The constitutional rights of a person under
custodial interrogation under Section 20, Article IV of the 1973
Constitution did not therefore come into play, were of no relevance to
the inquiry. It is also clear, too, that Ramos had voluntarily answered
questions posed to him on the first day of the administrative
investigation, February 9, 1986 and agreed that the proceedings
should be recorded, the record having thereafter been marked during
the trial of the criminal action subsequently filed against him as
Exhibit A, just as it is obvious that the note (later marked as Exhibit
K) that he sent to his superiors on February 8,1986, the day before the
investigation, offering to compromise his liability in the alleged
irregularities, was a free and even spontaneous act on his part. They
may not be excluded on the ground that the so-called "Miranda rights"
had not been accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger x x

(of) the violation of the right of any person against self-incrimination
when the investigation is conducted by the complaining parties,
complaining companies, or complaining employers because being
interested parties, unlike the police agencies who have no propriety or
pecuniary interest to protect, they may in their over-eagerness or
zealousness bear heavily on their hapless suspects, whether
employees or not, to give statements under an atmosphere of moral
coercion, undue ascendancy and undue influence." It suffices to draw
attention to the specific and peremptory requirement of the law that
disciplinary sanctions may not be imposed on any employee by his
employer until and unless the employee has been accorded due
process, by which is meant that the latter must be informed of the
offenses ascribed to him and afforded adequate time and opportunity
to explain his side. The requirement entails the making of statements,
oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the assistance
of counsel, or his colleagues and friends. The employee may, of
course, refuse to submit any statement at the investigation, that is his
privilege. But if he should opt to do so, in his defense to the accusation
against him, it would be absurd to reject his statements, whether at
the administrative investigation, or at a subsequent criminal action
brought against him, because he had not been accorded, prior to his
making and presenting them, his "Miranda rights" (to silence and to
counsel and to be informed thereof, etc.) which, to repeat, are
relevant only in custodial investigations. Indeed, it is self-evident that
the employee's statements, whether called "position paper,"
"answer," etc., are submitted by him precisely so that they may be
admitted and duly considered by the investigating officer or
committee, in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain

instances the judge's expressed apprehensions may be realized, that
violence or intimidation, undue pressure or influence be brought to
bear on an employee under investigation — or for that matter, on a
person being interrogated by another whom he has supposedly
offended. In such an event, any admission or confession wrung from
the person under interrogation would be inadmissible in evidence, on
proof of the vice or defect vitiating consent, not because of a violation
of Section 20, Article IV of the 1973 Constitution, but simply on the
general, incontestable proposition that involuntary or coerced
statements may not in justice be received against the makers thereof,
and really should not be accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting

aside the Orders of the respondent Judge in Criminal Case No. 3488-R,
dated August 9, 1988 and September 14, 1988, and he is hereby
ordered to admit in evidence Exhibits "A" and "K" of the prosecution
in said Criminal Case No. 3488-R, and thereafter proceed with the
trial and adjudgment thereof. The temporary restraining order of
October 26, 1988 having become functus officio, is now declared of no
further force and effect.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SPECIAL SECOND DIVISION

G.R. No. 151258 December 1, 2014

ARTEMIO VILLAREAL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. No. 154954

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO
ALMEDA, DALMACIO LIM, JR., JUNEL ANTHONY AMA, ERNESTO
JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL,
SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA
FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE
VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE
PURISIMA II, EULOGIO SABBAN, PERCIVAL D. BRIGOLA, PAUL
ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR.,
ADEL ABAS, JOSEPH LLEDO, and RONAN DE GUZMAN, Respondents.

x-----------------------x

G.R. No. 155101

FIDELITO DIZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

x-----------------------x

G.R. Nos. 178057 & 178080

GERARDA H. VILLA, Petitioner,

vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN
RAMOS, CRISANTO CRUZ SARUCA, JR., and ANSELMO
ADRIANO, Respondents.

RESOLUTION
SERENO, CJ:

We are asked to revisit our Decision in the case involving the death of
Leonardo "Lenny" Villa due to fraternity hazing. While there is
nothing new in the arguments raised by the parties in their respective
Motions for Clarification or Reconsideration, we find a few remaining
matters needing to be clarified and resobed. Sorne oJ' these matters
include the effect of our Decision on the finality of the Court of
Appeals judgments insofar as respondents Antonio Mariano A!meda
(Almeda), June] Anthony D. Arna (Arna), Renato Bantug, Jr. (Bantug),
and Vincent Tecson (Tecson) are concerned; the question of who are
eligible to seek probation; and the issue of the validity of the
probation proceedings and the concomitant orders of a court that
allegedly had no jurisdiction over the case.

Before the Court are the respective Motions for Reconsideration or

Clarification filed by petitioners People of the Philippines, through the
Office of the Solicitor General (OSG), and Gerarda H. Villa (Villa); and
by respondents Almeda, Ama, Bantug, and Tecson (collectively, Tecson
et al.) concerning the Decision of this Court dated 1 February
2012.1 The Court modified the assailed judgments2 of the Court of
Appeals (CA) in CA-G.R. CR No. 15520 and found respondents Fidelito
Dizon (Dizon), Almeda, Ama, Bantug, and Tecson guilty beyond
reasonable doubt of the crime of reckless imprudence resulting in
homicide. The modification had the effect of lowering the criminal
liability of Dizon from the crime of homicide, while aggravating the
verdict against Tecson et al. from slight physical injuries. The CA
Decision itself had modified the Decision of the Caloocan City Regional
Trial Court (RTC) Branch 121 finding all of the accused therein guilty
of the crime of homicide.3

Also, we upheld another CA Decision4 in a separate but related case

docketed as CA-G.R. S.P. Nos. 89060 & 90153 and ruled that the CA did
not commit grave abuse of discretion when it dismissed the criminal
case against Manuel Escalona II (Escalona), Marcus Joel Ramos
(Ramos), Crisanto Saruca, Jr. (Saruca), and Anselmo Adriano
(Adriano) on the ground that their right to speedy trial was violated.
Reproduced below is the dispositive portion of our Decision:5

WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding

petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and
SET ASIDE IN PART. The appealed Judgment in G.R. No. 154954 –
finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug,
Jr., and Vincent Tecson guilty of the crime of slight physical injuries –
is also MODIFIED and SET ASIDE IN PART. Instead, Fidelito Dizon,
Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and
Vincent Tecson are found GUILTY beyond reasonable doubt of reckless
imprudence resulting in homicide defined and penalized under Article
365 in relation to Article 249 of the Revised Penal Code. They are
hereby sentenced to suffer an indeterminate prison term of four (4)
months and one (1) day of arresto mayor, as minimum, to four (4)
years and two (2) months of prision correccional, as maximum. In
addition, accused are ORDERED jointly and severally to pay the heirs
of Lenny Villa civil indemnity ex delicto in the amount of 50,000, and
moral damages in the amount of 1,000,000, plus legal interest on all
damages awarded at the rate of 12% from the date of the finality of
this Decision until satisfaction. Costs de oficio.

The appealed Judgment in G.R. No. 154954, acquitting Victorino et al.,

is hereby AFFIRMED. The appealed Judgments in G.R. Nos. 178057 &
178080, dismissing the criminal case filed against Escalona, Ramos,
Saruca, and Adriano, are likewise AFFIRMED. Finally, pursuant to
Article 89(1) of the Revised Penal Code, the Petition in G.R. No. 151258
is hereby dismissed, and the criminal case against Artemio Villareal
deemed CLOSED and TERMINATED.

Let copies of this Decision be furnished to the Senate President and

the Speaker of the House of Representatives for possible consideration
of the amendment of the Anti-Hazing Law to include the fact of
intoxication and the presence of non-resident or alumni fraternity
members during hazing as aggravating circumstances that would
increase the applicable penalties.

SO ORDERED.

To refresh our memories, we quote the factual antecedents

surrounding the present case:6

In February 1991, seven freshmen law students of the Ateneo de

Manila University School of Law signified their intention to join the
Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez
III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix
Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some
members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo
Law School. They all proceeded to Rufo’s Restaurant to have dinner.
Afterwards, they went to the house of Michael Musngi, also an
Aquilan, who briefed the neophytes on what to expect during the
initiation rites. The latter were informed that there would be physical
beatings, and that they could quit at any time. Their initiation rites
were scheduled to last for three days. After their "briefing," they were
brought to the Almeda Compound in Caloocan City for the
commencement of their initiation.

Even before the neophytes got off the van, they had already received
threats and insults from the Aquilans. As soon as the neophytes
alighted from the van and walked towards the pelota court of the
Almeda compound, some of the Aquilans delivered physical blows to
them. The neophytes were then subjected to traditional forms of
Aquilan "initiation rites." These rites included the "Indian Run,"
which required the neophytes to run a gauntlet of two parallel rows of
Aquilans, each row delivering blows to the neophytes; the "Bicol
Express," which obliged the neophytes to sit on the floor with their
backs against the wall and their legs outstretched while the Aquilans
walked, jumped, or ran over their legs; the "Rounds," in which the
neophytes were held at the back of their pants by the "auxiliaries"
(the Aquilans charged with the duty of lending assistance to neophytes
during initiation rites), while the latter were being hit with fist blows
on their arms or withknee blows on their thighs by two Aquilans; and
the "Auxies’ Privilege Round," in which the auxiliaries were given the
opportunity to inflict physical pain on the neophytes. During this time,
the neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.

On the morning of their second day – 9 February 1991 – the neophytes

were made to present comic plays and to play rough basketball. They
were also required to memorize and recite the Aquila Fraternity’s
principles. Whenever they would give a wrong answer, they would be
hit on their arms or legs. Late in the afternoon, the Aquilans revived
the initiation rites proper and proceeded to torment them physically
and psychologically. The neophytes were subjected to the same
manner of hazing that they endured on the first day of initiation. After
a few hours, the initiation for the day officially ended.

After a while, accused non-resident or alumni fraternity members

Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded that
the rites be reopened. The head of initiation rites, Nelson Victorino
(Victorino), initially refused. Upon the insistence of Dizon and
Villareal, however, he reopened the initiation rites. The fraternity
members, including Dizon and Villareal, then subjected the neophytes
to "paddling" and to additional rounds of physical pain. Lenny
received several paddle blows, one of which was so strong it sent him
sprawling to the ground. The neophytes heard him complaining of
intense pain and difficulty in breathing. After their last session of
physical beatings, Lenny could no longer walk. He had to be carried by
the auxiliaries to the carport. Again, the initiation for the day was
officially ended, and the neophytes started eating dinner. They then
slept at the carport.

After an hour of sleep, the neophytes were suddenly roused by Lenny’s

shivering and incoherent mumblings.1avvphi1 Initially, Villareal and
Dizon dismissed these rumblings, as they thought he was just
overacting. When they realized, though, that Lenny was really feeling
cold, some of the Aquilans started helping him. They removed his
clothes and helped him through a sleeping bag to keep him warm.
When his condition worsened, the Aquilans rushed him to the
hospital. Lenny was pronounced dead on arrival.

Consequently, a criminal case for homicide was filed against the

following 35 Aquilans:

In Criminal Case No. C-38340(91)

1. Fidelito Dizon (Dizon)

2. Artemio Villareal (Villareal)

3. Efren de Leon (De Leon)

4. Vincent Tecson (Tecson)

5. Junel Anthony Ama (Ama)

6. Antonio Mariano Almeda (Almeda)

7. Renato Bantug, Jr. (Bantug)

8. Nelson Victorino (Victorino)

9. Eulogio Sabban (Sabban)

 10. Joseph Lledo (Lledo)

11. Etienne Guerrero (Guerrero)

12. Michael Musngi (Musngi)

13. Jonas Karl Perez (Perez)

14. Paul Angelo Santos (Santos)

15. Ronan de Guzman (De Guzman)

16. Antonio General (General)

17. Jaime Maria Flores II (Flores)

18. Dalmacio Lim, Jr. (Lim)

19. Ernesto Jose Montecillo (Montecillo)

20. Santiago Ranada III (Ranada)

21. Zosimo Mendoza (Mendoza)

22. Vicente Verdadero (Verdadero)

23. Amante Purisima II (Purisima)

24. Jude Fernandez (J. Fernandez)

25. Adel Abas (Abas)

26. Percival Brigola (Brigola)

In Criminal Case No. C-38340

1. Manuel Escalona II (Escalona)

2. Crisanto Saruca, Jr. (Saruca)

3. Anselmo Adriano (Adriano)

4. Marcus Joel Ramos (Ramos)

 5. Reynaldo Concepcion (Concepcion)

6. Florentino Ampil (Ampil)

7. Enrico de Vera III (De Vera)

8. Stanley Fernandez (S. Fernandez)

9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91)

were jointly tried. On the other hand, the trial against the remaining
nine accused in Criminal Case No. C-38340 was held in abeyance due
to certain matters that had to be resolved first.

On 8 November 1993, the trial court rendered judgment in Criminal

Case No. C-38340(91), holding the 26 accused guilty beyond
reasonable doubt of the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal Code. A few weeks
after the trial court rendered its judgment, or on 29 November 1993,
Criminal Case No. C-38340 against the remaining nine accused
commenced anew.

On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside the
finding of conspiracy by the trial court in Criminal Case No. C-
38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then
passed away, so the following Decision applied only to the remaining
25 accused, viz:

1. Nineteen of the accused-appellants– Victorino, Sabban, Lledo,

Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores,
Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima,
Fernandez, Abas, and Brigola (Victorino et al.) – were
acquitted,as their individual guilt was not established by proof
beyond reasonable doubt.

2. Four of the accused-appellants– Vincent Tecson, Junel

Anthony Ama, Antonio Mariano Almeda, and Renato Bantug, Jr.
(Tecson et al.) – were found guilty of the crime of slight physical
injuriesand sentenced to 20 days of arresto menor. They were
also ordered to jointly pay the heirs of the victim the sum of
₱30,000 as indemnity.
 3. Two of the accused-appellants– Fidelito Dizonand Artemio
Villareal– were found guilty beyond reasonable doubt of the
crime of homicide under Article 249 of the Revised Penal Code.
Having found no mitigating or aggravating circumstance, the CA
sentenced them to an indeterminate sentence of 10 years of
prision mayor to 17 years of reclusion temporal. They were also
ordered to indemnify, jointly and severally, the heirs of Lenny
Villa in the sum of ₱50,000 and to pay the additional amount of
₱1,000,000 by way of moral damages.

On 5 August 2002, the trial court in Criminal Case No. 38340

dismissed the charge against accused Concepcion on the ground of
violation of his right to speedy trial. Meanwhile, on different dates
between the years 2003 and 2005, the trial court denied the
respective Motions to Dismiss of accused Escalona, Ramos, Saruca,
and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 &
90153 reversed the trial court’s Orders and dismissed the criminal
case against Escalona, Ramos, Saruca, and Adriano on the basis of
violation of their right to speedy trial.

From the aforementioned Decisions, the five (5) consolidated Petitions

were individually brought before this Court. (Citations omitted)

Motion for Partial Reconsideration

filed by Petitioner Gerarda H. Villa

Petitioner Villa filed the present Motion for Partial

7
Reconsideration in connection with G.R. Nos. 178057 & 178080 (Villa
v. Escalona) asserting that the CA committed grave abuse of discretion
when it dismissed the criminal case against Escalona, Ramos,Saruca,
and Adriano (collectively, Escalona et al.) in its assailed Decision and
Resolution.8 Villa reiterates her previous arguments that the right to
speedy trial of the accused was not violated, since they had failed to
assert that right within a reasonable period of time. She stresses that,
unlike their co-accused Reynaldo Concepcion, respondents Escalona et
al.did not timely invoke their right to speedy trial during the time that
the original records and pieces of evidence were unavailable. She
again emphasizes that the prosecution cannot be faulted entirely for
the lapse of 12 years from the arraignment until the initial trial, as
there were a number of incidents attributable to the accused
themselves that caused the delay of the proceedings. She then insists
that we apply the balancing test in determining whether the right to
speedy trial of the accused was violated.
Motion for Reconsideration filed by the OSG

The OSG, in its Motion for Reconsideration9 of G.R. Nos. 155101 (Dizon
v. People) and 154954 (People v. Court of Appeals), agrees with the
findings of this Court that accused Dizon and Tecson et al. had neither
the felonious intent to kill (animus interficendi) nor the felonious
intent to injure (animus iniuriandi) Lenny Villa. In fact, it concedes
that the mode in which the accused committed the crime was through
fault (culpa). However, it contends that the penalty imposed should
have been equivalent to that for deceit (dolo) pursuant to Article 249
(Homicide) of the Revised Penal Code. It argues that the nature and
gravity of the imprudence or negligence attributable to the accused
was so gross that it shattered the fine distinction between dolo and
culpaby considering the act as one committed with malicious intent. It
maintains that the accused conducted the initiation rites in such a
malevolent and merciless manner that it clearly endangered the lives
of the initiates and was thus equivalent to malice aforethought.

With respect to the 19 other accused, or Victorino et al., the OSG

asserts that their acquittal may also be reversed despite the rule on
double jeopardy, as the CA also committed grave abuse of discretion in
issuing its assailed Decision (CA-G.R. No. 15520). The OSG insists that
Victorino et al. should have been similarly convicted like their other
co-accused Dizon, Almeda, Ama, Bantug, and Tecson, since the former
also participated in the hazing of Lenny Villa, and their actions
contributed to his death.

Motions for Clarification or Reconsideration of Tecson et al.

Respondents Tecson et al.,10 filed their respective motions pertaining

to G.R. No. 154954 (People v. Court of Appeals). They essentially seek
a clarification as to the effect of our Decision insofar as their criminal
liability and service of sentence are concerned. According to
respondents, they immediately applied for probation after the CA
rendered its Decision (CAG.R. No. 15520) lowering their criminal
liability from the crime of homicide, which carries a non-
probationable sentence, to slight physical injuries, which carries a
probationable sentence. Tecson et al.contend that, as a result, they
have already been discharged from their criminal liability and the
cases against them closed and terminated. This outcome was
supposedly by virtue of their Applications for Probation on various
dates in January 200211 pursuant to Presidential Decree No. 968, as
amended, otherwise known as the Probation Law. They argue that
Branch 130 of Caloocan City Regional Trial Court (RTC) had already
granted their respective Applications for Probation on 11 October
200212 and, upon their completion of the terms and conditions
thereof, discharged them from probation and declared the criminal
case against them terminated on various dates in April 2003.13

To support their claims, respondents attached14 certified true copies

of their respective Applications for Probation and the RTC Orders
granting these applications, discharging them from probation, and
declaring the criminal case against them terminated. Thus, they
maintain that the Decision in CA-G.R. No. 15520 had already lapsed
into finality, insofar as they were concerned, whenthey waived their
right to appeal and applied for probation.

ISSUES

I. Whether the CA committed grave abuse of discretion

amounting to lack or excess of jurisdiction when it dismissed
the case against Escalona, Ramos, Saruca, and Adriano for
violation of their right to speedy trial

II. Whether the penalty imposed on Tecson et al. should have

corresponded to that for intentional felonies

III. Whether the completion by Tecson et al. of the terms and

conditions of their probation discharged them from their
criminal liability, and closed and terminated the cases against
them DISCUSSION

Findings on the Motion for Partial Reconsideration of

Petitioner Gerarda H. Villa

As regards the first issue, we take note that the factual circumstances
and legal assertions raised by petitioner Villa in her Motion for Partial
Reconsideration concerning G.R. Nos. 178057 & 178080 have already
been thoroughly considered and passed uponin our deliberations,
which led to our Decision dated 1 February 2012. We emphasize that
in light of the finding of violation of the right of Escalona et al. to
speedy trial, the CA’s dismissal of the criminal case against them
amounted to an acquittal,15 and that any appeal or reconsideration
thereof would result in a violation of their right against double
jeopardy.16 Though we have recognized that the acquittal of the
accused may be challenged where there has been a grave abuse of
discretion,17 certiorari would lie if it is convincingly established that
the CA’s Decision dismissing the case was attended by a whimsical or
capricious exercise of judgment equivalent to lack of jurisdiction. It
must be shown that the assailed judgment constitutes "a patent and
gross abuse of discretion amounting to an evasion of a positive duty or
to a virtual refusal to perform a duty imposed by law or toact in
contemplation of law; an exercise of power in an arbitrary and
despotic manner by reason of passion and hostility; or a blatant abuse
of authority to a point so grave and so severe as to deprive the court
of its very power to dispense justice."18 Thus, grave abuse of
discretion cannot be attributed to a court simply because it allegedly
misappreciated the facts and the evidence.19

We have taken a second look at the court records, the CA Decision, and
petitioner’s arguments and found no basis to rule that the CA gravely
abused its discretion in concluding that the right to speedy trial of the
accused was violated. Its findings were sufficiently supported by the
records of the case and grounded in law. Thus, we deny the motion of
petitioner Villa with finality.

Ruling on the Motion for Reconsideration filed by the OSG

We likewise deny with finality the Motion for Reconsideration filed by

the OSG with respect to G.R. Nos. 155101 (Dizon v. People) and 154954
(People v. Court of Appeals). Many of the arguments raised therein
are essentially a mere rehash of the earlier grounds alleged in its
original Petition for Certiorari.

Furthermore, we cannot subscribe to the OSG’s theory that even if the

act complained of was born of imprudence or negligence, malicious
intent can still be appreciated on account of the gravity of the actions
of the accused. We emphasize that the finding of a felony committed
by means of culpa is legally inconsistent with that committed by
means of dolo. Culpable felonies involve those wrongs done as a result
of an act performed without malice or criminal design. The Revised
Penal Code expresses thusly:

ARTICLE 365. Imprudence and Negligence. — Any person who, by

reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty of
arresto mayorin its maximum period toprisión correccional in its
medium period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall be
imposed.

Any person who, by simple imprudence or negligence, shall commit an

act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayorin its medium and maximum periods; if it
would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.

xxxx

Reckless imprudence consists in voluntary, but without malice, doing

or falling to do an act from which material damage results by reason
of inexcusable lack of precaution on the part of the person performing
or failing to perform suchact, taking into consideration his
employment or occupation, degree of intelligence, physical condition
and other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in

those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest. (Emphases supplied)

On the other hand, intentional felonies concern those wrongs in which

a deliberate malicious intent to do an unlawful act is present. Below is
our exhaustive discussion on the matter:20 Our Revised Penal Code
belongs tothe classical school of thought. x x x The identity of mens
rea– defined as a guilty mind, a guilty or wrongful purpose or criminal
intent – is the predominant consideration. Thus, it is not enough to do
what the law prohibits. In order for an intentional felony to exist, it is
necessary that the act be committed by means of doloor "malice."

The term "dolo" or "malice" is a complex idea involving the elements

of freedom, intelligence, and intent. x x x x The element of intent – on
which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act. It refers to the
purpose of the mind and the resolve with which a person proceeds.It
does not refer to mere will, for the latter pertains to the act, while
intentconcerns the result of the act. While motive is the "moving
power" that impels one to action for a definite result, intent is the
"purpose" of using a particular means to produce the result. On the
other hand, the term "felonious"means, inter alia, malicious,
villainous, and/or proceeding from an evil heart or purpose.With
these elements taken together, the requirement of intent in
intentional felony must refer to malicious intent, which is a vicious
and malevolent state of mind accompanying a forbidden act. Stated
otherwise, intentional felony requires the existence of dolus malus–
that the act or omission be done "willfully," "maliciously," "with
deliberate evil intent," and "with malice aforethought." The maxim is
actus non facit reum, nisi mens sit rea– a crime is not committed if
the mind of the person performing the act complained of is innocent.
As is required of the other elements of a felony, the existence of
malicious intent must be proven beyond reasonable doubt.

xxxx

The presence of an initial malicious intent to commit a felony is thus a

vital ingredient in establishing the commission of the intentional
felony of homicide. Being mala in se, the felony of homicide requires
the existence of malice or dolo immediately before or simultaneously
with the infliction of injuries. Intent to kill – or animus interficendi–
cannot and should not be inferred, unless there is proof beyond
reasonable doubt of such intent. Furthermore, the victim’s death must
not have been the product of accident, natural cause, or suicide. If
death resulted from an act executed without malice or criminal intent
– but with lack of foresight, carelessness, or negligence – the act must
be qualified as reckless or simple negligence or imprudence resulting
in homicide.

xxxx

In order to be found guilty ofany of the felonious acts under Articles

262 to 266 of the Revised Penal Code, the employment of physical
injuries must be coupled with dolus malus. As an act that is mala in
se, the existence of malicious intent is fundamental, since injury
arises from the mental state of the wrongdoer – iniuria ex affectu
facientis consistat. If there is no criminal intent, the accused cannot
be found guilty of an intentional felony. Thus, incase of physical
injuries under the Revised Penal Code, there must be a specific animus
iniuriandi or malicious intention to do wrong against the physical
integrity or wellbeing of a person, so as to incapacitate and deprive
the victim of certain bodily functions. Without proof beyond
reasonable doubt of the required animus iniuriandi, the overt act of
inflicting physical injuries per semerely satisfies the elements of
freedom and intelligence in an intentional felony. The commission of
the act does not, in itself, make a man guilty unless his intentions are.
Thus, we have ruled in a number of instances that the mere infliction
of physical injuries, absentmalicious intent, does not make a person
automatically liable for an intentional felony.x x x.

xxxx

The absence of malicious intent does not automatically mean,

however, that the accused fraternity members are ultimately devoid
of criminal liability. The Revised Penal Code also punishes felonies
that are committed by means of fault (culpa). According to Article 3
thereof, there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done

without malice, from which an immediate personal harm, injury or
material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In
this case, the danger is visible and consciously appreciated by the
actor. In contrast, simple imprudence or negligence comprises an act
done without grave fault, from which an injury or material damage
ensues by reason of a mere lack of foresight or skill. Here, the
threatened harm is not immediate, and the danger is not openly
visible.

The test for determining whether or not a person is negligent in doing

an act is as follows: Would a prudent man in the position of the
person to whom negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course about to be
pursued? If so, the law imposes on the doer the duty to take
precaution against the mischievous resultsof the act. Failure to do so
constitutes negligence.

As we held in Gaid v. People, for a person to avoid being charged with

recklessness, the degree of precaution and diligence required varies
with the degree of the danger involved. If, on account of a certain line
of conduct, the danger of causing harm to another person is great, the
individual who chooses to follow that particular course of conduct is
bound to be very careful, inorder to prevent or avoid damage or
injury. In contrast, if the danger is minor, not much care is required.
It is thus possible that there are countless degrees of precaution or
diligence that may be required of an individual, "from a transitory
glance of care to the most vigilant effort." The duty of the person to
employ more or less degree of care will depend upon the
circumstances of each particular case. (Emphases supplied, citations
omitted)

We thus reiterate that the law requires proof beyond reasonable doubt
of the existence of malicious intent or dolus malus before an accused
can be adjudged liable for committing an intentional felony.

Since the accused were found to have committed a felony by means of

culpa, we cannot agree with the argument of the OSG. It contends that
the imposable penalty for intentional felony can also be applied to the
present case on the ground that the nature of the imprudence or
negligence of the accused was so gross that the felony already
amounted to malice. The Revised Penal Code has carefully delineated
the imposable penalties as regards felonies committed by means of
culpaon the one hand and felonies committed by means of doloon the
other in the context of the distinctions it has drawn between them.
The penalties provided in Article 365 (Imprudence and Negligence)
are mandatorily applied if the death of a person occurs as a result of
the imprudence or negligence of another. Alternatively, the penalties
outlined in Articles 246 to 261 (Destruction of Life) are automatically
invoked if the death was a result of the commission of a forbidden act
accompanied by a malicious intent. These imposable penalties are
statutory, mandatory, and not subjectto the discretion of the court.
We have already resolved – and the OSG agrees – that the accused
Dizon and Tecson et al. had neither animus interficendi nor animus
iniuriandi in inflicting physical pain on Lenny Villa. Hence, we rule
that the imposable penalty is what is applicable to the crime of
reckless imprudence resulting in homicide as defined and penalized
under Article 365 of the Revised Penal Code.

Ruling on the Motions for Clarification or Reconsideration

filed by Tecson et al.

We clarify, however, the effect of our Decision in light of the motions

of respondents Tecson et al. vis-à-vis G.R. No. 154954 (People v. Court
of Appeals).

The finality of a CA decision will not

bar the state from seeking the
annulment of the judgment via a
Rule 65 petition.
In their separate motions,21 respondents insist that the previous
verdict of the CA finding them guilty of slight physical injuries has
already lapsed into finality as a result of their respective availments
of the probation program and their ultimate discharge therefrom.
Hence, they argue that they can no longer be convicted of the heavier
offense of reckless imprudence resulting in homicide.22 Respondents
allude to our Decision in Tan v. People23 to support their contention
that the CA judgment can no longer be reversed or annulled even by
this Court.

The OSG counters24 that the CA judgment could not have attained
finality, as the former had timely filed with this Court a petition for
certiorari. It argues that a Rule 65 petition is analogous to an appeal,
or a motion for new trial or reconsideration, in that a petition for
certiorarialso prevents the case from becoming final and executory
until after the matter is ultimately resolved.

Indeed, Rule 120 of the Rules of Court speaks of the finality of a

criminal judgment once the accused applies for probation, viz:

SECTION 7. Modification of judgment. — A judgment of convictionmay,

upon motion of the accused, be modified or set aside before it
becomes final or before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes finalafter the lapse of the
period for perfecting an appeal, or whenthe sentence has been
partially or totally satisfied or served, or when the accusedhas waived
in writing his right to appeal, or has applied for probation. (7a)
(Emphases supplied)

Coupled with Section 7 of Rule 11725 and Section 1 of Rule 122,26 it can
be culled from the foregoing provisions that only the accused may
appeal the criminal aspect of a criminal case, especially if the relief
being sought is the correction or review of the judgment therein. This
rule was instituted in order to give life to the constitutional
edict27 against putting a person twice in jeopardy of punishment for
the same offense. It is beyond contention that the accused would be
exposed to double jeopardy if the state appeals the criminal judgment
in order to reverse an acquittal or even to increase criminal liability.
Thus, the accused’s waiver of the right to appeal – as when applying
for probation – makes the criminal judgment immediately final and
executory. Our explanation in People v. Nazareno is worth
reiterating:28
Further prosecution via an appeal from a judgment of acquittal is
likewise barred because the government has already been afforded a
complete opportunity to prove the criminal defendant’s culpability;
after failing to persuade the court to enter a final judgment of
conviction, the underlying reasons supporting the constitutional ban
on multiple trials applies and becomes compelling. The reason is not
only the defendant’s already established innocence at the first trial
where he had been placed in peril of conviction, but also the same
untoward and prejudicial consequences of a second trial initiated by a
government who has at its disposal all the powers and resources of
the State.

Unfairness and prejudice would necessarily result, as the government

would then be allowed another opportunity to persuade a second trier
of the defendant’s guilt while strengthening any weaknesses that had
attended the first trial, all in a process where the government’s power
and resources are once again employed against the defendant’s
individual means. That the second opportunity comesvia an appeal
does not make the effects any less prejudicial by the standards of
reason, justice and conscience. (Emphases supplied, citations omitted)

It must be clarified, however, that the finality of judgment evinced in

Section 7 of Rule 120 does not confer blanket invincibility on criminal
judgments. We have already explained in our Decision that the rule on
double jeopardy is not absolute, and that this rule is inapplicable to
cases in which the state assails the very jurisdiction of the court that
issued the criminal judgment.29 The reasoning behind the exception is
articulated in Nazareno, from which we quote:30

In such instance, however, no review of facts and law on the merits,

in the manner done in an appeal, actually takes place; the focus of the
review is on whether the judgment is per sevoid on jurisdictional
grounds, i.e., whether the verdict was rendered by a court that had no
jurisdiction; or where the court has appropriate jurisdiction, whether
it acted with grave abuse of discretion amounting to lack or excess of
jurisdiction. In other words, the review is on the question of whether
there has been a validly rendered decision, not on the question of the
decision’s error or correctness. Under the exceptional nature of a Rule
65 petition, the burden — a very heavy one — is on the shoulders of
the party asking for the review to show the presence of a whimsical or
capricious exercise of judgment equivalent to lack of jurisdiction; or
of a patent and gross abuse of discretion amounting to an evasion of a
positive duty or a virtual refusal to perform a duty imposed by law or
to act in contemplation of law; or to an exercise of power in an
arbitrary and despotic manner by reason of passion and hostility.
(Emphases supplied, citations omitted) While this Court’s Decision in
Tan may have created an impression of the unassailability of a
criminal judgment as soon as the accused applies for probation, we
point out that what the state filed therein was a mere motion for the
modification of the penalty, and not a Rule 65 petition. A petition for
certiorari is a special civil action that is distinct and separate from the
main case. While in the main case, the core issue is whether the
accused is innocent or guilty of the crime charged, the crux of a Rule
65 petition is whether the court acted (a) without or in excess of its
jurisdiction; or (b) with grave abuse of discretion amounting to lack
or excess of jurisdiction. Hence, strictly speaking, there is
nomodification of judgment in a petition for certiorari, whose
resolution does not call for a re-evaluation of the merits of the case in
order to determine the ultimate criminal responsibility of the accused.
In a Rule 65 petition, any resulting annulment of a criminal judgment
is but a consequence of the finding of lack of jurisdiction.

In view thereof, we find that the proper interpretation of Section 7 of

Rule 120 must be that it is inapplicable and irrelevant where the
court’s jurisdiction is being assailed through a Rule 65 petition.
Section 7 of Rule 120 bars the modification of a criminal judgment
only if the appeal brought before the court is in the nature of a regular
appeal under Rule 41, or an appeal by certiorari under Rule 45, and if
that appeal would put the accused in double jeopardy. As it is, we find
no irregularity in the partial annulment of the CA Decision in CA-G.R.
No. 15520 in spite of its finality, as the judgment therein was issued
with grave abuse of discretion amounting to lack or excess of
jurisdiction.

The orders of Caloocan City RTC

Branch 130 have no legal effect, as
they were issued without jurisdiction.

First, Tecson et al. filed their Applications for Probation with the
wrong court. Part and parcel of our criminal justice system is the
authority or jurisdiction of the court to adjudicate and decide the case
before it. Jurisdiction refers to the power and capacity of the tribunal
to hear, try, and decide a particular case or matter before it. 31 That
power and capacity includes the competence to pronounce a judgment,
impose a punishment,32 and enforce or suspend33 the execution of a
sentencein accordance with law.
The OSG questions34 the entire proceedings involving the probation
applications of Tecson et al. before Caloocan City RTC Branch 130.
Allegedly, the trial court did not have competence to take cognizance
of the applications, considering that it was not the court of origin of
the criminal case. The OSG points out that the trial court that
originally rendered the Decision in Criminal Case No. C-38340(91)
was Branch 121 of the Caloocan City RTC.

The pertinent provision of the Probation Law is hereby quoted for

reference:

SEC. 4. Grant of Probation. — Subject to the provisions of this Decree,

the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period
for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction. x x x x
(Emphases supplied)

It is obvious from the foregoing provision that the law requires that
an application for probation be filed withthe trial court that convicted
and sentenced the defendant, meaning the court of origin. Here, the
trial court that originally convicted and sentenced Tecson et al.of the
crime of homicide was Branch 121 – not Branch 130 – of the Caloocan
City RTC.35 Neither the judge of Branch 130 in his Orders nor Tecson
et al.in their pleadings have presented any explanation or shown any
special authority that would clarify why the Applications for
Probation had not been filed with or taken cognizance of by Caloocan
City RTC Branch 121. While we take note that in a previous case, the
CA issued a Decision ordering the inhibition of Branch 121 Judge
Adoracion G. Angeles from hearing and deciding Criminal Case No. C-
38340(91), the ruling was made specifically applicable to the trial of
petitioners therein, i.e. accused Concepcion, Ampil, Adriano, and S.
Fernandez.36

Tecson et al. thus committed a fatal error when they filed their
probation applications with Caloocan City RTC Branch 130, and not
with Branch 121. We stress that applicants are not at liberty to choose
the forum in which they may seek probation, as the requirement
under Section 4 of the Probation law is substantive and not merely
procedural. Considering, therefore, that the probation proceedings
were premised on an unwarranted exercise of authority, we find that
Caloocan City RTC Branch 130 never acquired jurisdiction over the
case.

Second, the records of the casewere still with the CA when Caloocan
City RTC Branch 130 granted the probation applications. Jurisdiction
over a case is lodged with the court in which the criminal action has
been properly instituted.37 If a party appeals the trial court’s
judgment or final order,38 jurisdiction is transferred to the appellate
court. The execution of the decision is thus stayed insofar as the
appealing party is concerned.39 The court of origin then loses
jurisdiction over the entire case the moment the other party’s time to
appeal has expired.40 Any residual jurisdiction of the court of origin
shall cease – including the authority to order execution pending
appeal – the moment the complete records of the case are transmitted
to the appellate court.41 Consequently, it is the appellate court that
shall have the authority to wield the power to hear, try, and decide
the case before it, as well as to enforce its decisions and resolutions
appurtenant thereto. That power and authority shall remain with the
appellate court until it finally disposes of the case. Jurisdiction cannot
be ousted by any subsequent event, even if the nature of the incident
would have prevented jurisdiction from attaching in the first place.

According to Article 78 of the Revised Penal Code, "[n]o penalty shall

be executed except by virtue of a final judgment." A judgment of a
court convicting or acquitting the accused of the offense charged
becomes final under any of the following conditions among
others:42 after the lapse of the period for perfecting an appeal; when
the accused waives the right to appeal; upon the grant of a
withdrawal ofan appeal; when the sentence has already been partially
or totally satisfied or served; or when the accused applies for
probation. When the decision attains finality, the judgment or final
order is entered in the book of entries of judgments. 43 If the case was
previously appealed to the CA, a certified true copy of the judgment or
final order must be attached to the original record, which shall then
be remanded to the clerk of the court from which the appeal was
taken.44 The court of origin then reacquires jurisdiction over the case
for appropriate action. It is during this time that the court of origin
may settle the matter of the execution of penalty or the suspension of
the execution thereof,45 including the convicts’ applications for
probation.46
A perusal of the case records reveals that the CA had not yet
relinquished its jurisdiction over the case when Caloocan City RTC
Branch 130 took cognizance of the Applications for Probation of
Tecson et al. It shows that the accused filed their respective
applications47 while a motion for reconsideration was still pending
before the CA48 and the records were still with that court.49 The CA
settled the motion only upon issuing the Resolution dated 30 August
2002 denying it, or about seven months after Tecson et al. had filed
their applications with the trial court.50 In September 2002, or almost
a month before the promulgation of the RTC Order dated 11 October
2002 granting the probation applications,51 the OSG had filed
Manifestations of Intent to File Petition for Certiorari with the
CA52 and this Court.53 Ultimately, the OSG assailed the CA judgments
by filing before this Court a Petition for Certiorari on 25 November
2002.54 We noted the petition and then required respondents to file a
comment thereon.55 After their submission of further pleadings and
motions, we eventually required all parties to file their consolidated
memoranda.56 The records of the case remained with the CA until they
were elevated to this Court in 2008.57

For the foregoing reasons, we find that RTC Branch 130 had no
jurisdiction to act on the probation applications of Tecson et al. It had
neither the power nor the authority to suspend their sentence, place
them on probation, order their final discharge, and eventually declare
the case against them terminated. This glaring jurisdictional faux
pasis a clear evidence of either gross ignorance of the law oran
underhanded one-upmanship on the part of RTC Branch 130 or Tecson
et al., or both – to which this Court cannot give a judicial imprimatur.

In any event, Tecson et al. were ineligible to seek probation at the

time they applied for it. Probation58 is a special privilege granted by
the state to penitent qualified offenders who immediately admit their
liability and thus renounce their right to appeal. In view of their
acceptance of their fate and willingness to be reformed, the state
affords them a chance to avoid the stigma of an incarceration
recordby making them undergo rehabilitation outside of prison. Some
of the major purposes of the law are to help offenders to eventually
develop themselves into law-abiding and self respecting individuals,
as well as to assist them in their reintegration with the community.

It must be reiterated that probation is not a right enjoyed by the

accused. Rather, it is an act of grace orclemency conferred by the
state. In Francisco v. Court of Appeals,59 this Court explained thus:
It is a special prerogative granted by law to a person or group of
persons not enjoyed by others or by all. Accordingly, the grant of
probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused. The Probation Law should
not therefore be permitted to divest the state or its government of any
of the latter’s prerogatives, rights or remedies, unless the intention of
the legislature to this end is clearly expressed, and no person should
benefit from the terms of the law who is not clearly within them.
(Emphases supplied)

The OSG questions the validity of the grant of the probation

applications of Tecson et al.60 It points out that when they appealed to
the CA their homicide conviction by the RTC, they thereby made
themselves ineligible to seek probation pursuant to Section 4 of
Presidential Decree No. 968 (the Probation Law).

We refer again to the full text ofSection 4 of the Probation Law as

follows:

SEC. 4. Grant of Probation. — Subject to the provisions of this Decree,

the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period
for perfecting an appeal, suspend the execution of the sentence and
place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of

imprisonment or a fine only. An application for probation shall be
filed with the trial court. The filing of the application shall be deemed
a waiver of the right to appeal.

An order granting or denying probation shall not be appealable.

(Emphases supplied)

Indeed, one of the legal prerequisites of probation is that the offender

must not have appealed the conviction.61 In the 2003 case Lagrosa v.
Court of Appeals,62 this Court was faced with the issue of whether a
convict may still apply for probation even after the trial court has
imposed a non probationable verdict, provided that the CA later on
lowers the original penalty to a sentence within the probationable
limit. In that case, the trial court sentenced the accused to a maximum
term of eight years of prisión mayor, which was beyond the coverage
of the Probation Law. They only became eligible for probation after
the CA reduced the maximum term of the penalty imposed to 1 year, 8
months and 21 days of prisión correccional.

In deciding the case, this Court invoked the reasoning in Francisco and
ruled that the accused was ineligiblefor probation, since they had filed
an appeal with the CA. In Francisco, we emphasized that Section 4 of
the Probation Law offers no ambiguity and does not provide for any
distinction, qualification, or exception. What is clearis that all
offenders who previously appealed their cases, regardless of their
reason for appealing, are disqualified by the law from seeking
probation. Accordingly, this Court enunciated in Lagrosathat the
accused are disallowed from availing themselves of the benefits of
probation if they obtain a genuine opportunity to apply for probation
only on appeal as a result of the downgrading of their sentence from
non-probationable to probationable.

While Lagrosa was promulgated three months after Caloocan City RTC
Branch 130 issued its various Orders discharging Tecson et al. from
probation, the ruling in Lagrosa, however, was a mere reiteration of
the reasoning of this Court since the 1989 case Llamado v. Court of
Appeals63 and Francisco. The Applications for Probation of Tecson et
al., therefore, should not have been granted by RTC Branch 130, as
they had appealed their conviction to the CA. We recall that
respondents were originally found guilty of homicide and sentenced to
suffer 14 years, 8 months, and 1 day of reclusion temporal as
maximum. Accordingly, even if the CA later downgraded their
conviction to slight physical injuries and sentenced them to 20 days of
arresto menor, which made the sentence fall within probationable
limits for the first time, the RTC should have nonetheless found them
ineligible for probation at the time.

The actions of the trial court must thus be adjudged as an arbitrary

and despotic use of authority, so gross that it divested the court of its
very power to dispense justice. As a consequence, the RTC Orders
granting the Applications for Probation of Tecson et al. and thereafter
discharging them from their criminal liability must be deemed to have
been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.
Whether for lack of jurisdiction orfor grave abuse of discretion,
amounting to lack or excess of jurisdiction, we declare all orders,
resolutions, and judgments of Caloocan City RTC Branch 130 in
relation to the probation applications of Tecson et al. null and void for
having been issued without jurisdiction. We find our pronouncement
in Galman v. Sandiganbayan64 applicable, viz:

A void judgment is, in legal effect, no judgment at all. By it no rights

are divested. Through it, no rights can be attained. Being worthless,
all proceedings founded upon it are equally worthless. It neither binds
nor bars anyone. All acts performed under it and all claims flowing
out of it are void. (Emphasis supplied)

The ultimate discharge of Tecson et

al. from probation did not totally
extinguish their criminal liability.

Accused Bantug asserts65 that, in any event, their criminal liability has
already been extinguished as a result of their discharge from
probation and the eventual termination of the criminal case against
them by Caloocan City RTC Branch 130. To support his argument, he
cites the following provision of the Revised Penal Code:

ARTICLE 89. How Criminal Liability is Totally Extinguished. —

Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and

as to pecuniary penalties, liability therefor is extinguished only
when the death of the offender occurs before final judgment.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and

all its effects.

4. By absolute pardon.

5. By prescription of the crime.

6. By prescription of the penalty.

7. By the marriage of the offended woman, as provided in article

344 of this Code. (Emphasis supplied)
As previously discussed, a void judgment cannot be the source of legal
rights; legally speaking, it is as if no judgment had been rendered at
all. Considering our annulment of the Orders of Caloocan City RTC
Branch 130 in relation to the probation proceedings, respondents
cannot claim benefits that technically do not exist.

In any event, Tecson et al.cannot invoke Article89 of the Revised Penal

Code, as we find it inapplicable to this case. One of the hallmarks of
the Probation Law is precisely to "suspend the execution of the
sentence,"66 and not to replace the original sentence with another, as
we pointed out in our discussion in Baclayon v. Mutia:67

An order placing defendant on "probation" is not a "sentence" but is

rather in effect a suspension of the imposition of sentence. It is not a
final judgment but is rather an "interlocutory judgment"in the nature
of a conditional order placing the convicted defendant under the
supervision of the court for his reformation, to be followed by a final
judgment of discharge, if the conditions of the probation are complied
with, or by a final judgment of sentence if the conditions are violated.
(Emphases supplied)

Correspondingly, the criminal liability of Tecson et al.remains.

In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.

Very recently, in Colinares v. People,68 we revisited our ruling in

Franciscoand modified our pronouncements insofar as the eligibility
for probation of those who appeal their conviction is concerned.
Through a majority vote of 9-6, the Court En Bancin effect abandoned
Lagrosaand settled the following once and for all:69

Secondly, it is true that under the probation law the accused who
appeals "from the judgment of conviction" is disqualified from
availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a
conviction for frustrated homicide by the regional trial court,now set
aside; and, two, a conviction for attempted homicide by the Supreme
Court.

If the Court chooses to go by the dissenting opinion’s hard position, it

will apply the probation law on Arnel based on the trial court’s
annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him.
More, the Supreme Court’s judgment of conviction for a lesser offense
and a lighter penalty will also have to bend over to the trial court’s
judgment — even if this has been found in error. And, worse, Arnel
will now also be made to pay for the trial court’s erroneous judgment
with the forfeiture of his right to apply for probation. Ang kabayo ang
nagkasala, ang hagupit ay sa kalabaw(the horse errs, the carabao gets
the whip). Where is justice there?

The dissenting opinion also expresses apprehension that allowing

Arnel to apply for probation would dilute the ruling of this Court in
Francisco v. Court of Appealsthat the probation law requires that an
accused must not have appealed his conviction before he can avail
himself of probation. But there is a huge difference between
Franciscoand this case.

xxxx

Here, however, Arnel did not appeal from a judgment that would have
allowed him to apply for probation. He did not have a choice between
appeal and probation. Hewas not in a position to say, "By taking this
appeal, I choose not to apply for probation." The stiff penalty that the
trial court imposed on him denied him that choice. Thus, a ruling that
would allow Arnel to now seek probation under this Court’s greatly
diminished penalty will not dilute the sound ruling in Francisco. It
remains that those who will appeal from judgments of conviction,
when they have the option to try for probation, forfeit their right to
apply for that privilege.

xxxx

In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have
found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This would have
afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to

probation through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory
provisions. As Justice Vicente V. Mendoza said in his dissent in
Francisco, the Probation Law must not be regarded as a mere privilege
to be given to the accused only where it clearly appears he comes
within its letter; to do so would be to disregard the teaching in many
cases that the Probation Law should be applied in favor of the accused
not because it is a criminal law but to achieve its beneficent purpose.

xxxx

At any rate, what is clear is that, had the RTC done what was right and
imposed on Arnel the correct penalty of two years and four months
maximum, he would havehad the right to apply for probation. No one
could say with certainty that he would have availed himself of the
right had the RTC doneright by him. The idea may not even have
crossed his mind precisely since the penalty he got was not
probationable.

The question in this case is ultimately one of fairness.1âwphi1 Is it fair

to deny Arnel the right to apply for probation when the new penalty
that the Court imposes on him is, unlike the one erroneously imposed
by the trial court, subject to probation? (Emphases supplied)

In our Decision, we set aside the RTC and the CA judgments and found
Tecson et al.ultimately liable for the crime of reckless imprudence
resulting in homicide. Pursuant to Article 365 of the Revised Penal
Code, the offense is punishable by arresto mayor in its maximum
period (from 4 months and 1 day to 6 months) to prisión correccional
in its medium period (from 2 years, 4 months, and 1 day to 4 years
and 2 months). Considering that the new ruling in Colinares is more
favorable to Tecson et al., we rule that they are now eligible to apply
for probation. Since Fidelito Dizon (Dizon) was convicted of the same
crime, we hereby clarify that Dizon is also eligible for probation.

While we cannot recognize the validityof the Orders of RTC Branch

130, which granted the Applications for Probation, we cannot
disregard the fact that Tecson et al. have fulfilled the terms and
conditions of their previous probation program and have eventually
been discharged therefrom. Thus, should they reapply for probation,
the trial court may, at its discretion, consider their antecedent
probation service in resolving whether to place them under probation
at this time and in determining the terms, conditions, and period
thereof.
Final clarificatory matters

We now take this opportunity to correct an unintentional

typographical error in the minimum term of the penalty imposed on
the accused Dizon and Tecson et al. While this issue was not raised by
any of the parties before us, this Court deems it proper to discuss the
matter ex proprio motuin the interest of justice. In the first paragraph
of the dispositive portion of our Decision dated 1 February 2012, the
fourth sentence reads as follows:

They are hereby sentenced to suffer anindeterminate prison term of

four (4) months and one (1) day of arresto mayor, as minimum, to
four (4) years and two (2) months of prisión correccional, as
maximum.

As we had intended to impose on the accused the maximum term of

the "penalty next lower" than that prescribed by the Revised Penal
Code for the offense of reckless imprudence resulting in homicide, in
accordance with the Indeterminate Sentence Law (ISL), 70 the phrase
"and one (1) day," which had been inadvertently added, must be
removed. Consequently, in the first paragraph of the dispositive
portion, the fourth sentence should now read as follows:

They are hereby sentenced to suffer anindeterminate prison term of

four (4) months of arresto mayor, as minimum, to four (4) years and
two (2) months of prisión correccional, as maximum. In this instance,
we further find it important to clarify the accessory penalties inherent
to the principal penalty imposed on Dizon and Tecson et al.

By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a

corresponding accessory penalty automatically attaches every time a
court lays down a principal penalty outlined in Articles 25 and 27
thereof.71 The applicable accessory penalty is determined by using as
reference the principal penaltyimposed by the court before the prison
sentence is computed in accordance with the ISL.72 This determination
is made in spite of the two classes ofpenalties mentioned in an
indeterminate sentence. It must be emphasized that the provisions on
the inclusion of accessory penalties specifically allude to the actual
"penalty"73 imposed, not to the "prison sentence"74 set by a court. We
believe that the ISL did not intend to have the effect of imposing on
the convict two distinct sets of accessory penalties for the same
offense.75 The two penalties are only relevant insofar as setting the
minimum imprisonment period is concerned, after which the convict
may apply for parole and eventually seek the shortening of the prison
term.76

Under Article 365 of the Revised Penal Code, the prescribed penalty
for the crime of reckless imprudence resulting in homicide is arresto
mayor in its maximum period to prisión correccionalin its medium
period. As this provision grants courts the discretion tolay down a
penalty without regard to the presence of mitigating and aggravating
circumstances, the imposable penaltymust also be within the
aforementioned range.77 Hence, before applying the ISL, we ultimately
imposed on Dizon and Tecson et al. the actual (straight) penalty 78 of
four years and two months of prisión correccional.79 Pursuant to
Article 43 of the Revised Penal Code, the penalty of prisión
correccional automatically carries with it80 the following accessory
penalties: ARTICLE 43. Prisión Correccional— Its accessory penalties.
— The penalty of prisión correccional shall carry with it that of
suspension from public office, from the right tofollow a profession or
calling, and that of perpetual special disqualification from the right of
suffrage, if the duration of said imprisonment shall exceed eighteen
months. The offender shall suffer the disqualification provided in this
article although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.

The duration of their suspension shall be the same as that of their

principal penalty sans the ISL; that is, for four years and two
months81 or until they have served their sentence in accordance with
law. Their suspension takes effect immediately, once the judgment of
conviction becomes final.82

We further point out that if the length of their imprisonment exceeds

18 months, they shall furthermore suffer a perpetual special
disqualification from the right of suffrage. Under Article 32 of the
RevisedPenal Code, if this accessory penalty attaches, it shall forever
deprive them of the exercise of their right (a) to vote in any popular
election for any public office; (b) to be elected to that office; and (c)
to hold any public office.83 Any public office that they may be holding
becomes vacant upon finality of the judgment.84 The aforementioned
accessory penalties can only be wiped out if expressly remitted in a
pardon.85

Of course, the aforementioned accessory penalties are without

prejudice to a grant of probation, shouldthe trial court find them
eligible therefor. As we explained in Baclayon,86 the grant of
probation suspends the execution of the principal penalty of
imprisonment, as well as that of the accessory penalties. We have
reiterated this point in Moreno v. Commission on Elections:87

In Baclayon v. Mutia, the Court declared that an order placing

defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal
penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a
profession or calling, and that of perpetual special disqualification
from the right of suffrage. We thus deleted from the order granting
probation the paragraph which required that petitioner refrain from
continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of

suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period imposed upon
Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is

not even disqualified from running for a public office because the
accessory penalty of suspension from public office is put on hold for
the duration of the probation. x x x x. During the period of probation,
the probationer does not serve the penalty imposed upon him by the
court but is merely required to comply with all the conditions
prescribed in the probation order.

WHEREFORE, premises considered, the Motion for Partial

Reconsideration of petitioner Gerarda H. Villa in connection with G.R.
Nos. 178057 & 178080 is hereby DENIED. The Motion for
Reconsideration filed by the Office of the Solicitor General concerning
G.R. Nos. 155101 and 154954 is also DENIED.

The respective Motions for Clarification or Reconsideration of Antonio

Mariano Almeda, Junel Anthony D. Arna, Renato Bantug, Jr., and
Vincent Tecson are likewise DENIED. In light of the finding that
Caloocan City Regional Trial Court Branch 130 acted without or in
excess of its jurisdiction in taking cognizance of the aforementioned
Applications for Probation, we hereby ANNUL the entire probation
proceedings and SET ASIDE all orders, resolutions, or judgments
issued in connection thereto. We, however, CLARIFY that Antonio
Mariano Almeda, Junel Anthony D. Arna, Renato Bantug, Jr., Vincent
Tecson, and Fidelito Dizon are eligible to apply or reapply for
probation in view of our recent ruling in Colinares v. People of the
Philippines,88 without prejudice to their remaining civil liability, if
any.

Furthermore, we issue a CORRECTION of the dispositive portion of

our Decision dated 1 February 2012 and hereby delete the phrase "and
one (1) day" located in the fourth sentence of the first paragraph
thereof. The sentence shall now read as follows: "They are hereby
sentenced to suffer an indeterminate prison term of four (4) months
of arresto mayor, as minimum, to four (4) years and two (2) months
of prisi6n correccional, as maximum."

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. 117485-86 April 22, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MELCHOR ESTOMACA y GARQUE, accused-appellant.

REGALADO, J.:p

With our recent adjudgment in People vs. Alicando1 as a backdrop,

even an initial perusal of the records of these cases now before us on
appeal and/or automatic review gives a sense of paramnesia or, in the
French term more often used, deja vu. One cannot escape the illusion
of remembering events when experienced for the first time, or of
something overly or unpleasantly familiar in the present appellate
review.
Indeed, the courtroom dramatis personae in the cases at bar are the
same as in Alicando, that is, the presiding judge, 2 the government
counsel de oficio,3 and the substitute counsel de parte. 4 The cases
likewise involve the heinous crime of rape and were repressed by the
sentence of death. The crux of the controversy in both is identically
the validity vel non of the arraignment conducted by the same trial
court which followed closely equivalent procedures in conducting the
questioned proceedings. Hence, as will hereafter be demonstrated, the
observations of this Court will also inevitably converge and move
along the same channels of thought.

On May 24, 1994, consequent to five separate complaints, Criminal

Cases Nos. 43567, 43568, 43569, 43570 and 43571 were filed in the
Regional Trial Court, Branch 38, Iloilo City charging herein appellant,
an illiterate laborer, with rape committed on five separate occasions
against his own daughter, complainant Estelita Estomaca.

The trial court detailed its findings and the prosecution's contentions
on the multiple incestuous rapes, as follows:

Melita is the eldest daughter of the accused, the second

husband of Melita's mother. Melita has a full-blood
younger brother around twelve (12) years old. She has two
(2) half-blood sisters (from) the first marriage of her
mother who are residing in Manila.

Melita claims that she was first raped in July 1993, at their
residence at Barangay Tiolas, San Joaquin, Iloilo. This is
now the subject of Criminal Case No. 43567. The offense
was repeated by her father before Christmas of December,
1993 (Criminal Case No. 43568); January 1994 (Criminal
Case No. 43569); February 1994 (Criminal Case No.
43570); and on March 6, 1994 (Criminal Case No. 43571).5

There is some inconsistency in the statements on record as to what

actually took place on June 14, 1994 during the arraignment of
appellant, assisted by his government counsel de oficio, Atty. Rogelio
Antiquiera. The decision of the court below, dated July 15, 1994,
declares that he entered a plea of guilty to Criminal Cases Nos. 43568
and 43571, and a plea of not guilty to Criminal Cases Nos. 43567,
43569 and 43570.6 Obviously engendered by the insufficiency of the
proceedings conducted and the imprecision of the notes taken at this
stage, this matter will be further discussed hereafter.
The two criminal complaints, both subscribed by the offended party
on April 29, 1994 and which are the subject of the joint judgment of
the lower court challenged in this appellate review, respectively
allege:

Criminal Case No. 43568

That sometime in the month of December, 1993, in the

Municipality of San Joaquin, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, taking advantage of his
superior strength, abuse of confidence and trust, he being
the father of the undersigned, with deliberate intent and
by means of force, threat and intimidation, did then and
there wilfully, unlawfully and feloniously have sexual
intercourse with the undersigned who, at that time, (was)
15 years of age.7

Criminal Case No. 43571

That on or about March 6, 1994, in the Municipality of San

Joaquin, Province of Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, being the father of the undersigned complainant,
with deliberate intent and by means of force, threat and
intimidation, did then and there wilfully, unlawfully and
feloniously have sexual intercourse (with) the
undersigned, who, at that time, (was) 15 years of age. 8

Proceeding upon the capital nature of the offenses involved, the trial
court, after appellant ostensibly waived the presentation of evidence
for his defense, required the prosecution to adduce evidence
purportedly to establish appellant's guilt beyond reasonable doubt.
Thus, on June 29, 1994, the complainant herself, Melita Estomaca,
appeared in court and testified that she was raped by her father once
in December, 1993 and, again, on March 6, 1994. Both incidents,
according to her, took place inside their residence at Sitio
Tan-agan, Barangay Tiolas in San Joaquin, Iloilo at nighttime and that,
on those two occasions, she tried to resist her father's assaults to no
avail. After the last rape, she gathered enough courage to flee from
their home, and thereafter she reported the incidents to her mother
who was then living separately from them. Apparently, appellant was
later apprehended and has since been under detention.9
On the authority of Republic Act No. 7659 which took effect on
December 31, 1993, the lower court imposed upon appellant the
penalty of reclusion perpetua for the sexual assault supposedly
perpetrated in December, 1993, and the supreme penalty of death with
respect to the rape allegedly committed on March 6, 1994. In each of
the said cases, he was further ordered to indemnify the offended party
in the amount of P50,000.00 and to pay the costs. 10

What disconcerts this Court, however, is the alarming consistency of

non-compliance by the court a quo of the procedural rules to be
observed for the validity of the arraignment of an accused. Indeed, the
importance of this particular stage of a criminal proceeding,
especially when capital offenses are involved, cannot be over-
emphasized. Hence, we pause at this juncture to once again briefly
expound on this vital procedural aspect which the trial court, once
in Alicando and again in the case at bar, appears to have treated with
cavalier disregard or frustrating misapprehension.

1. In People vs. A. Albert, 11 we traced the developmental antecedents

which culminated and found expression in reglementary form in
Section 3, Rule 116 of the 1985 Rules on Criminal Procedure governing
a plea of guilty to a capital offense. We there pointed out that the
rationale behind the rule is that courts must proceed with more care
where the possible punishment is in its severest form — death — for
the reason that the execution of such a sentence is irrevocable and
experience has shown that innocent persons have at times pleaded
guilty. 12

We stressed the need to avoid improvident pleas of guilt since the

accused may thereby forfeit his life and liberty without having fully
understood the meaning, significance and consequences of his
plea. 13 We lamented the confused application adopted or the apathetic
indifference in the application of said rule considering the paramount
importance of a valid arraignment, it being the stage where the issues
are joined in the criminal action and without which the proceedings
cannot advance further or, if held, will otherwise be void. We then
enjoined the trial courts to review and reflect upon the jurisprudential
and statutory rules which evolved over time in response to the
injustice created by improvident pleas acknowledging guilt, at times
belatedly discovered under the judicial rug, if at all.

With exacting certitude, Section 1(a) of Rule 116 requires that the
arraignment should be made in open court by the judge himself or by
the clerk of court furnishing the accused a copy of the complaint or
information with the list of witnesses stated therein, then reading the
same in the language or dialect that is known to him, and asking him
what his plea is to the charge. The requirement that the reading be
made in a language or dialect that the accused understands and knows
is a mandatory requirement, just as the whole of said Section 1 should
be strictly followed by trial courts. This the law affords the accused by
way of implementation of the all-important constitutional mandate
regarding the right of an accused to be informed of the precise nature
of the accusation leveled at him and is, therefore, really an avenue for
him to be able to hoist the necessary defense in rebuttal thereof. 14 It
is an integral aspect of the due process clause under the Constitution.

2. For a more graphic illustration, and thereby a clearer appreciation

of what actually transpired in the so-called arraignment of appellant
in the court below, we quote at length the pertinent transcripts of the
stenographic notes taken at that stage, with emphases on significant
portions:

Pros. Nelson Geduspan : For the prosecution.

Atty. Rogelio Antiquiera : For the accused.

Ready for arraignment.

Court : The offended party is the daughter.

Interpreter : (Reading the

information/complaint to the accused in
Ilonggo/local dialect).

For Crim. Case No. 43567,

the accused, pleads Guilty.
For Crim. Case No. 43568,
the accused, pleads Guilty.
For Crim. Case No. 43569,
the accused, pleads Guilty.
For Crim. Case No. 43570,
the accused, pleads Guilty.
For Crim. Case No. 43571,
the accused, pleads Guilty.

Court : What is your educational attainment?

Witness : I was not able to finish Grade I.

Court : The court would like to explain to you

in your plea of Guilty. If you plead Guilty to
these five (5) offenses, definitely, you will have
five (5) sentences.

Accused : Yes, your honor.

Court : Under the New Law the least most

probably would be life sentence.

Accused : Yes, your honor.

Court : How old are you now?

Accused : Forty two.

Court : Because of this fact you have no chance

to get back to the new society and your rights
will be affected.

Accused : I know. That's what they told to me.

Court : Despite of (sic) this fact you still insist

on your plea of guilty in these five cases?

Interpreter : According to him, he performed

only two (2) acts.

Court : When (were) these two acts

performed?

Accused : December 1993 and March 1994.

Court : The other cases charged against you

(are) not true?

Accused : It is not true maybe it was committed

by her boyfriend then it was charged against
me.

Court : In so far as. . . What is not included in

the plea therefore, is the month of July 1993,
 January 1994 and the month of February 1994.
You did not commit these? Why is it that when
you were asked you entered a plea of guilty?

Accused : Because I committed two acts only.

Court : Why is it that when you were asked

you entered a plea of guilty?

Accused : Because what I recall is that I just

committed two acts of rape.

Court : Not Guilty in the three (3) charges and

Guilty in two (2) charges. Does counsel and
accused agree to pre-trial conference?

Atty. Antiquiera : We dispense (with) the pre-

trial conference.

Court : For the two charges (to) which he

pleads guilty, the court will receive evidence
in order to impose the proper penalty and on
the other charges, the court will receive
evidence for the prosecution. 15 (Emphasis and
corrections in parentheses ours.)

xxx xxx xxx

At the subsequent hearing, just like what happened in Alicando, the

presiding judge went through the same formality of having appellant
stand again before him, and this is what transpired:

Court : Before the court allows the prosecution

to present evidence, accused, please come here
again.

(At this juncture, the accused came near to the

court)

Court : The court informs you as accused that

you are charged (with) the crime of rape;
under the new law which if you plead guilty,
you will be sentence(d) to death penalty, did
you understand that?

A : Yes, Your Honor.

Q : Despite this warning for the second time by

the court to you, do you still insist (o)n your
plea of guilty?

A : Yes, Your Honor.

Q : Is this plea your voluntary will without

force or intimidation from anyone else to
include the complaining witness or the family?

A : No, Your Honor.

Q : So, therefore, the court will allow you to

present evidence if you wis(h) to because you
insist (o)n your plea of guilty. Do you intend to
present evidence.

A : No, I will not present evidence.

Court : Okey, because of this the court will

receive evidence of the prosecution.

In another case, the last time when arraigned,

you admitted that sometime in December,
1993, you likewise raped your daughter, do
you still confirm and affirm this?

A : Yes, Your Honor.

Q : In this case, because this was committed

(i)n December 1993, the penalty here
is reclusion perpetua. After learning this as
informed to you by the court, do still insist on
your plea of guilty?

A : Yes, I will admit. I did it.

 Q : Do you admit this voluntarily without
force, intimidation or physical injuries or
mauling on you by anyone whomsoever?

A : No, Sir.

Q : In connection with this,

therefore, definitely you will be convicted in
both cases?

A : Yes, your honor.

Q : What is your educational attainment?

A : Grade I.

Q : Being Grade I, the court emphasized

that you are swayed by your own fashion
because of your low education?

A : I am not.

Q : In other words, you still insist on your plea

of guilty?

A : Yes, sir.

Court : Okey, proceed with the presentation of

prosecution evidence.

Q : In this Criminal Case No. 43568, do you

intend to present evidence?

A : No, Your Honor.

Court : Okey, proceed. 16

xxx xxx xxx

3. At threshold, what strikes this Court as peculiar is that the

arraignment appears to have consisted merely of the bare reading of
the five complaints, synthetically and cryptically reported in the
transcript, thus: "(Reading the information/complaint to the accused
in Ilonggo/local dialect)." Since what was supposed to have been read
was stated in the singular, but there were five criminal complaints
against appellant, this Court is then left to speculate on whether all
five criminal complaints were actually read, translated or explained to
appellant on a level within his comprehension, considering his limited
education.

Again, on the presumption of correctness, since this Court has no

other bearings to steer by, it may be assumed that all five complaints
were read since the clerk is supposed to have thereafter announced in
cadence and in the consecutive order of cases that appellant pleaded
guilty to all the charges. What, however, punctures this possible
bubble of regularity is that appellant subsequently declared, and the
clerk consequently contradicted her previous recital, that he was not
pleading guilty to three of the complaints. This is hardly a respectable
and credible performance in the solemnity of a court trial of five
capital offenses.

We cannot, therefore, be persuaded that on this very basic procedure

alone, involving just the mechanical process of arraignment outlined
in Section 1, there was the necessary degree of compliance by the
court below. Other considerations reveal how flawed the supposed
arraignment actually was. For instance, there is no showing whether
or not appellant or his counsel de oficio was furnished a copy of each
complaint with the list of witnesses against him, in order that the
latter may duly prepare and comply with his responsibilities. Of more
troublous concern is the fact that appellant was not specifically
warned that on his plea of guilty, he would definitely and in any event
be given the death penalty under the "New Law," as the trial court
calls Republic Act No. 7659. He was also not categorically advised
that his plea of guilty would not under any circumstance affect or
reduce the death sentence as he may have believed or may have been
erroneously advised.

Such an erroneous notion on the part of appellant which may have

impelled him to plead guilty is not improbable or conjectural,
especially when we consider his mental state and the environmental
situation. This is precisely what People vs. Dayot 17 cautioned against,
thus:

A "searching inquiry," under the Rules, means more than

informing cursorily the accused that he faces a jail term
(because the accused is aware of that) but so also, the
exact length of imprisonment under the law and the
 certainty that he will serve time at the national
penitentiary or a penal colony. Not infrequently indeed, an
accused pleads guilty in the hope, as we said, of a lenient
treatment, or upon a bad advice or promises of the
authorities or parties of a lighter penalty should he admit
guilt or express "remorse." It is the duty of the judge to see
to it that he does not labor under these mistaken
impressions, . . . . (Emphasis supplied).

Likewise of very serious importance and consequence is the fact that

the complaints were supposedly read to appellant in "Ilonggo/local
dialect." Parenthetically, there was no statement of record that
appellant fully understood that medium of expression. This assumes
added significance since Ilonggo, or properly called Hiligaynon, is a
regional language, 18 spoken in a major part of Iloilo province, Negros
Occidental and, with variations, in Capiz. Within a province or major
geographical area using a basic regional language, there may be other
local dialects spoken in certain parts thereof. If said indication in the
aforequoted portion of the transcript intended to convey that Ilonggo
is merely a local dialect and was also the idiom referred to, the same
is egregious error; it would be different if "local dialect" was used to
denote an alternative and different medium but, inexplicably, without
identifying what it was.

The significance of this distinction is found right in the provisions of

Section 1(a) of Rule 116 which, cognizant of the aforestated linguistic
variations, deliberately required that the complaint or information be
read to the accused in the language or the dialect known to him, to
ensure his comprehension of the charges. The Court takes judicial
notice, because it
is either of public knowledge or readily capable of unquestionable
demonstration, 19 that in the central and northwestern part of Iloilo
province and all the way up to and throughout Antique, including
necessarily San Joaquin where the offenses were committed and of
which appellant and his family are natives, the local dialect is known
as "kinaray-a."

Barring previous exposure to or as a consequence of extended social

or commercial intercourse, "kinaray-a" is not readily understandable
to nor spoken by those born to the Hiligaynon regional language or
who have lived in the areas under its sway for an appreciable period
of time. The converse is true for those whose native tongue is the
dialect of "kinaray-a," since they are generally not well-versed in
Ilonggo, or Hiligaynon. Since all the complaints are not only in English
but in technical legal language, we are again at sea as to whether and
how the indictments were translated to Ilonggo and/or to "kinaray-a,"
or that the appellant was truly and honestly made aware of the
charges and, especially, the consequences of his guilty plea thereto.
The records are silent and do not reveal anything on this point, nor
how the dialogue between the presiding judge and appellant was
translated. Yet a man's life is at stake while this Court wrestles with
that dilemma created by an omission of official duty.

4. The foregoing discussion brings us to the strict injunction that the

trial court must fully discharge its duty to conduct the requisite
searching inquiry in such a way as would indubitably show that
appellant had made not only a clear, definite and unconditional plea,
but that he did so with a well-informed understanding and full
realization of the consequences thereof. To ask an accused about his
educational attainment and then warn him that he might have
admitted the crime because of his poor intelligence is certainly not the
logical approach in assaying the sufficiency of his plea of guilty.

In the same manner, a mere warning to him that he could possibly

face extreme retribution in the form of death or face a life sentence in
jail is not even enough. 20 The trial judge should ascertain and be
totally convinced that, for all intents and purposes, the plea recorded
has all the earmarks of a valid
and acceptable confession upon which an eventual judgment of
conviction can stand. 21 Although there is no definite and concrete rule
as to how a trial judge may go about the matter of a proper "searching
inquiry," it would be well for the court, for instance, to require the
accused to fully narrate the incident that spawned the charges against
him, or by making him reenact the manner in which he perpetrated
the crime, or by causing him to furnish and explain to the court
missing details of significance. 22

The trial court should also be convinced that the accused has not been
coerced or placed under a state of duress either by actual threats of
physical harm coming from malevolent or avenging quarters and this
it can do, such as by ascertaining from the accused himself the
manner in which he was subsequently brought into the custody of the
law; or whether he had the assistance of competent counsel during the
custodial and preliminary investigations; and, ascertaining from him
the conditions under which he was detained and interrogated during
the aforestated investigations. Likewise, a series of questions directed
at defense counsel as to whether or not said counsel had conferred
with, and completely explained to the accused the meaning of a plea
and its consequences, would be a well-taken step along those lines. 23

Questions of these nature are undoubtedly crucial and no truer is this

than in the case of appellant for, again, the original records
and rollo of this case now under review are completely bereft of any
document or record concerning his apprehension, detention and prior
investigation, whether custodial or preliminary. The foregoing
circumstances must be taken in addition to the appropriate
forewarnings of the consequences of a plea of guilty, as well as the
questions by the court regarding the age, educational attainment and
socio-economic status of the accused which may reveal contributory
insights for a proper verdict in the case.

And, on this latter aspect, we are inclined to quote

from Alicando since, as stated in limine the defective arraignment in
the cases now before us is virtually a reprise of what the same trial
court with its presiding judge did or did not do in that previous case:

Section 3 of Rule 116 which the trial court violated is not a

new rule for it merely incorporated the decision of this
Court in People vs. Apduhan Jr. and reiterated in an
unbroken line of cases. The bottom line of the rule is that
a plea of guilt must be based on a free and informed
judgment. Thus, the searching inquiry of the trial court
must be focused on: (1) the voluntariness of the plea; and
(2) the full comprehension of the consequences of the
plea. The questions of the trial court failed to show the
voluntariness of the plea of guilt of the appellant nor did
the questions demonstrate appellant's full comprehension
of the consequences of the plea. The records do not reveal
any information about the personality profile of the
appellant which can serve as a trustworthy index of his
capacity to give a free and informed plea of guilt. The age,
socio-economic status, and educational background of the
appellant were not plumbed by the trial court. . . . .
(Citations omitted).

It will be readily observed, if one would analyze appellant's responses

during his irregular arraignment, that his low intelligence quotient
and lack of education combined to deprive him of fully understanding
what obviously appeared to him as mysterious rituals and unfamiliar
jargons. This was also what happened, and what we duly noted,
in People vs. Albert, supra.

In the transcripts of said proceeding which are earlier quoted

extensively, there are italicized portions showing not only the grossly
inadequate or ambiguous, if not indifferent, questions of the lower
court but also the erratic answers of appellant which are neither
responsive nor rational.. There is no need to belabor them here since
they speak for themselves, but we are not impressed by the formulary
questions posed by the lower court while going through the motions of
interviewing appellant. The Court would want to stress here,
therefore, that the judicial conscience cannot accept as valid a plea of
guilty to a charge with a mandatory death penalty when entered by an
accused with a befuddled state of mind at an arraignment with
reversible lapses in law.

5. Adverting once again to Alicando, we reiterated therein that

pursuant to Binabay vs. People, et al.,24 no valid judgment can be
rendered upon an invalid arraignment. Since in Alicando the
arraignment of appellant therein was void, the judgment of conviction
rendered against him was likewise void, hence in fairness to him and
in justice to the offended party that case was remanded to the trial
court for further proceedings. The case at bar being on all fours with
the aforementioned cases on the particular determinant issue, we
have perforce to yield to the same doctrine and disposition.

Let it be clearly understood, however, especially by the censorious:

This Court will not hesitate to impose the capital punishment when all
the requisites therefor have been met in accordance with the law of
the land. It cannot, therefore, hold a life forfeit, no matter how
despicable the offender, when effective protection for his basic rights
was denied because of poverty or ignorance. Nor will the Court render
a death sentence just to make a meretricious obeisance to the vengeful
call for blood. Judicious verdicts evolve from the privacy of reasoned
reflection in chambers and not from the publicity of emotional acclaim
on the podium.

WHEREFORE, the judgment of the court a quo in Criminal Cases Nos.

43568 and 43571 convicting accused-appellant Melchor Estomaca y
Garque of two crimes of rape is hereby SET ASIDE. Said cases are
REMANDED to the trial court for further and appropriate proceedings,
with instructions that the same be given appropriate priority and the
proceedings therein be conducted with deliberate dispatch and
circumspection.

SO ORDERED.

Narvasa, C.J., Padilla, Davide

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 152662 June 13, 2012

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
MA. THERESA PANGILINAN, Respondent.

DECISION

PEREZ, J.:

The Office of the Solicitor General (OSG) filed this petition for
certiorari1 under Rule 45 of the Rules of Court, on behalf of the
Republic of the Philippines, praying for the nullification and setting
aside of the Decision2 of the Court of Appeals (CA) in CA-G.R. SP No.
66936, entitled "Ma. Theresa Pangilinan vs. People of the Philippines
and Private Complainant Virginia C. Malolos."

The fallo of the assailed Decision reads:

WHEREFORE, the instant petition is GRANTED. Accordingly, the

assailed Decision of the Regional Trial Court of Quezon City, Branch
218, is REVERSED and SET ASIDE and Criminal Cases Nos. 89152 and
89153 against petitioner Ma. Theresa Pangilinan are hereby ordered
DISMISSED.3

Culled from the record are the following undisputed facts:

On 16 September 1997, Virginia C. Malolos (private complainant) filed

an affidavit-complaint for estafa and violation of Batas Pambansa (BP)
Blg. 22 against Ma. Theresa Pangilinan (respondent) with the Office of
the City Prosecutor of Quezon City. The complaint alleges that
respondent issued nine (9) checks with an aggregate amount of Nine
Million Six Hundred Fifty-Eight Thousand Five Hundred Ninety-Two
Pesos (₱9,658,592.00) in favor of private complainant which were
dishonored upon presentment for payment.

On 5 December 1997, respondent filed a civil case for accounting,

recovery of commercial documents, enforceability and effectivity of
contract and specific performance against private complainant before
the Regional Trial Court (RTC) of Valenzuela City. This was docketed
as Civil Case No. 1429-V-97.

Five days thereafter or on 10 December 1997, respondent filed a

"Petition to Suspend Proceedings on the Ground of Prejudicial
Question" before the Office of the City Prosecutor of Quezon City,
citing as basis the pendency of the civil action she filed with the RTC
of Valenzuela City.

On 2 March 1998, Assistant City Prosecutor Ruben Catubay

recommended the suspension of the criminal proceedings pending the
outcome of the civil action respondent filed against private
complainant with the RTC of Valenzuela City. The recommendation
was approved by the City Prosecutor of Quezon City.

Aggrieved, private complainant raised the matter before the

Department of Justice (DOJ).

On 5 January 1999, then Secretary of Justice Serafin P. Cuevas

reversed the resolution of the City Prosecutor of Quezon City and
ordered the filing of informations for violation of BP Blg. 22 against
respondent in connection with her issuance of City Trust Check No.
127219 in the amount of ₱4,129,400.00 and RCBC Check No. 423773 in
the amount of ₱4,475,000.00, both checks totaling the amount of
₱8,604,000.00. The estafa and violation of BP Blg. 22 charges
involving the seven other checks included in the affidavit-complaint
filed on 16 September 1997 were, however, dismissed.

Consequently, two counts for violation of BP Blg. 22, both dated 18

November 1999, were filed against respondent Ma.Theresa Pangilinan
on 3 February 2000 before the Office of the Clerk of Court,
Metropolitan Trial Court (MeTC), Quezon City. These cases were
raffled to MeTC, Branch 31on 7 June 2000.
On 17 June 2000, respondent filed an "Omnibus Motion to Quash the
Information and to Defer the Issuance of Warrant of Arrest" before
MeTC, Branch 31, Quezon City. She alleged that her criminal liability
has been extinguished by reason of prescription.

The presiding judge of MeTC, Branch 31, Quezon City granted the
motion in an Order dated 5 October 2000.

On 26 October 2000, private complainant filed a notice of appeal. The

criminal cases were raffled to RTC, Branch 218, Quezon City.

In a Decision dated 27 July 2001, the presiding judge of RTC, Branch

218, Quezon City reversed the 5 October 2000 Order of the MeTC. The
pertinent portion of the decision reads:

xxx Inasmuch as the informations in this case were filed on 03

February 2000 with the Clerk of Court although received by the Court
itself only on 07 June 2000, they are covered by the Rule as it was
worded before the latest amendment. The criminal action on two
counts for violation of BP Blg. 22, had, therefore, not yet prescribed
when the same was filed with the court a quo considering the
appropriate complaint that started the proceedings having been filed
with the Office of the Prosecutor on 16 September 1997 yet.

WHEREFORE, the assailed Order dated 05 October 2000 is hereby

REVERSED AND SET ASIDE. The Court a quo is hereby directed to
proceed with the hearing of Criminal Cases Nos. 89152 and 89153.4

Dissatisfied with the RTC Decision, respondent filed with the Supreme
Court a petition for review5 on certiorari under Rule 45 of the Rules of
Court. This was docketed as G.R. Nos. 149486-87.

In a resolution6 dated 24 September 2000, this Court referred the

petition to the CA for appropriate action.

On 26 October 2001, the CA gave due course to the petition by

requiring respondent and private complainant to comment on the
petition.

In a Decision dated 12 March 2002, the CA reversed the 27 July 2001

Decision of RTC, Branch 218, Quezon City, thereby dismissing Criminal
Case Nos. 89152 and 89153 for the reason that the cases for violation
of BP Blg. 22 had already prescribed.
In reversing the RTC Decision, the appellate court ratiocinated that:

xxx this Court reckons the commencement of the period of

prescription for violations of Batas Pambansa Blg. 22 imputed to
[respondent] sometime in the latter part of 1995, as it was within this
period that the [respondent] was notified by the private
[complainant] of the fact of dishonor of the subject checks and, the
five (5) days grace period granted by law had elapsed. The private
respondent then had, pursuant to Section 1 of Act 3326, as amended,
four years therefrom or until the latter part of 1999 to file her
complaint or information against the petitioner before the proper
court.

The informations docketed as Criminal Cases Nos. 89152 and

89152(sic) against the petitioner having been filed with the
Metropolitan Trial Court of Quezon City only on 03 February 2000,
the said cases had therefore, clearly prescribed.

xxx

Pursuant to Section 2 of Act 3326, as amended, prescription shall be

interrupted when proceedings are instituted against the guilty person.

In the case of Zaldivia vs. Reyes7 the Supreme Court held that the
proceedings referred to in Section 2 of Act No. 3326, as amended, are
‘judicial proceedings’, which means the filing of the complaint or
information with the proper court. Otherwise stated, the running of
the prescriptive period shall be stayed on the date the case is actually
filed in court and not on any date before that, which is in consonance
with Section 2 of Act 3326, as amended.

While the aforesaid case involved a violation of a municipal

ordinance, this Court, considering that Section 2 of Act 3326, as
amended, governs the computation of the prescriptive period of both
ordinances and special laws, finds that the ruling of the Supreme
Court in Zaldivia v. Reyes8 likewise applies to special laws, such as
Batas Pambansa Blg. 22.9

The OSG sought relief to this Court in the instant petition for
review.1âwphi1 According to the OSG, while it admits that Act No.
3326, as amended by Act No. 3585 and further amended by Act No.
3763 dated 23 November 1930, governs the period of prescription for
violations of special laws, it is the institution of criminal actions,
whether filed with the court or with the Office of the City Prosecutor,
that interrupts the period of prescription of the offense charged. 10 It
submits that the filing of the complaint-affidavit by private
complainant Virginia C. Malolos on 16 September 1997 with the Office
of the City Prosecutor of Quezon City effectively interrupted the
running of the prescriptive period of the subject BP Blg. 22 cases.

Petitioner further submits that the CA erred in its decision when it

relied on the doctrine laid down by this Court in the case of Zaldivia v.
Reyes, Jr.11 that the filing of the complaint with the Office of the City
Prosecutor is not the "judicial proceeding" that could have interrupted
the period of prescription. In relying on Zaldivia,12 the CA allegedly
failed to consider the subsequent jurisprudence superseding the
aforesaid ruling.

Petitioner contends that in a catena of cases,13 the Supreme Court

ruled that the filing of a complaint with the Fiscal’s Office for
preliminary investigation suspends the running of the prescriptive
period. It therefore concluded that the filing of the informations with
the MeTC of Quezon City on 3 February 2000 was still within the
allowable period of four years within which to file the criminal cases
for violation of BP Blg. 22 in accordance with Act No. 3326, as
amended.

In her comment-opposition dated 26 July 2002, respondent avers that

the petition of the OSG should be dismissed outright for its failure to
comply with the mandatory requirements on the submission of a
certified true copy of the decision of the CA and the required proof of
service. Such procedural lapses are allegedly fatal to the cause of the
petitioner.

Respondent reiterates the ruling of the CA that the filing of the

complaint before the City Prosecutor’s Office did not interrupt the
running of the prescriptive period considering that the offense
charged is a violation of a special law.

Respondent contends that the arguments advanced by petitioner are

anchored on erroneous premises. She claims that the cases relied upon
by petitioner involved felonies punishable under the Revised Penal
Code and are therefore covered by Article 91 of the Revised Penal Code
(RPC)14 and Section 1, Rule 110 of the Revised Rules on Criminal
Procedure.15 Respondent pointed out that the crime imputed against
her is for violation of BP Blg. 22, which is indisputably a special law
and as such, is governed by Act No. 3326, as amended. She submits
that a distinction should thus be made between offenses covered by
municipal ordinances or special laws, as in this case, and offenses
covered by the RPC.

The key issue raised in this petition is whether the filing of the
affidavit-complaint for estafa and violation of BP Blg. 22 against
respondent with the Office of the City Prosecutor of Quezon City on 16
September 1997 interrupted the period of prescription of such offense.

We find merit in this petition.

Initially, we see that the respondent’s claim that the OSG failed to
attach to the petition a duplicate original or certified true copy of the
12 March 2002 decision of the CA and the required proof of service is
refuted by the record. A perusal of the record reveals that attached to
the original copy of the petition is a certified true copy of the CA
decision. It was also observed that annexed to the petition was the
proof of service undertaken by the Docket Division of the OSG.

With regard to the main issue of the petition, we find that the CA
reversively erred in ruling that the offense committed by respondent
had already prescribed. Indeed, Act No. 3326 entitled "An Act to
Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin," as
amended, is the law applicable to BP Blg. 22 cases. Appositely, the law
reads:

SECTION 1. Violations penalized by special acts shall, unless otherwise

provided in such acts, prescribe in accordance with the following
rules: (a) xxx; (b) after four years for those punished by
imprisonment for more than one month, but less than two years; (c)
xxx.

SECTION 2. Prescription shall begin to run from the day of the

commission of the violation of the law, and if the same be not known
at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted

against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.
Since BP Blg. 22 is a special law that imposes a penalty of
imprisonment of not less than thirty (30) days but not more than one
year or by a fine for its violation, it therefor prescribes in four (4)
years in accordance with the aforecited law. The running of the
prescriptive period, however, should be tolled upon the institution of
proceedings against the guilty person.

In the old but oft-cited case of People v. Olarte,16 this Court ruled that
the filing of the complaint in the Municipal Court even if it be merely
for purposes of preliminary examination or investigation, should, and
thus, interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or information is
filed cannot try the case on the merits. This ruling was broadened by
the Court in the case of Francisco, et.al. v. Court of Appeals, et.
al.17 when it held that the filing of the complaint with the Fiscal’s
Office also suspends the running of the prescriptive period of a
criminal offense.

Respondent’s contention that a different rule should be applied to

cases involving special laws is bereft of merit. There is no more
distinction between cases under the RPC and those covered by special
laws with respect to the interruption of the period of prescription.
The ruling in Zaldivia v. Reyes, Jr.18 is not controlling in special laws.
In Llenes v. Dicdican,19 Ingco, et al. v. Sandiganbayan,20 Brillante v.
CA,21 and Sanrio Company Limited v. Lim,22 cases involving special
laws, this Court held that the institution of proceedings for
preliminary investigation against the accused interrupts the period of
prescription. In Securities and Exchange Commission v. Interport
Resources Corporation, et. al.,23 the Court even ruled that
investigations conducted by the Securities and Exchange Commission
for violations of the Revised Securities Act and the Securities
Regulations Code effectively interrupts the prescription period
because it is equivalent to the preliminary investigation conducted by
the DOJ in criminal cases.

In fact, in the case of Panaguiton, Jr. v. Department of Justice, 24 which

is in all fours with the instant case, this Court categorically ruled that
commencement of the proceedings for the prosecution of the accused
before the Office of the City Prosecutor effectively interrupted the
prescriptive period for the offenses they had been charged under BP
Blg. 22. Aggrieved parties, especially those who do not sleep on their
rights and actively pursue their causes, should not be allowed to
suffer unnecessarily further simply because of circumstances beyond
their control, like the accused’s delaying tactics or the delay and
inefficiency of the investigating agencies.

We follow the factual finding of the CA that "sometime in the latter

part of 1995" is the reckoning date of the commencement of
presumption for violations of BP Blg. 22, such being the period within
which herein respondent was notified by private complainant of the
fact of dishonor of the checks and the five-day grace period granted by
law elapsed.

The affidavit-complaints for the violations were filed against

respondent on 16 September 1997. The cases reached the MeTC of
Quezon City only on 13 February 2000 because in the meanwhile,
respondent filed a civil case for accounting followed by a petition
before the City Prosecutor for suspension of proceedings on the
ground of "prejudicial question". The matter was raised before the
Secretary of Justice after the City Prosecutor approved the petition to
suspend proceedings. It was only after the Secretary of Justice so
ordered that the informations for the violation of BP Blg. 22 were filed
with the MeTC of Quezon City.

Clearly, it was respondent’s own motion for the suspension of the

criminal proceedings, which motion she predicated on her civil case
for accounting, that caused the filing in court of the 1997 initiated
proceedings only in 2000.

As laid down in Olarte,25 it is unjust to deprive the injured party of the

right to obtain vindication on account of delays that are not under his
control. The only thing the offended must do to initiate the
prosecution of the offender is to file the requisite complaint.

IN LIGHT OF ALL THE FOREGOING, the instant petition is GRANTED.

The 12 March 2002 Decision of the Court of Appeals is hereby
REVERSED and SET ASIDE. The Department of Justice is ORDERED to
re-file the informations for violation of BP Blg. 22 against the
respondent.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. Nos. 163972-77 March 28, 2008

JOSELITO RANIERO J. DAAN, Petitioner,

vs.
THE HON. SANDIGANBAYAN Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Joselito Raniero J. Daan (petitioner), one of the accused in Criminal

Cases Nos. 24167-24170, 24195-24196,1 questions the denial by
the Sandiganbayan of his plea bargaining proposal.

The antecedents facts are laid down by Sandiganbayan in its

Resolution dated March 25, 2004, as follows:

Said accused,2 together with accused Benedicto E. Kuizon, were

charged before this Court for three counts of malversation of public
funds involving the sums of ₱3,293.00, ₱1,869.00, and ₱13,528.00,
respectively, which they purportedly tried to conceal by falsifying the
time book and payrolls for given period making it appear that some
laborers worked on the construction of the new municipal hall
building of Bato, Leyte and collected their respective salaries thereon
when, in truth and in fact, they did not. Thus, in addition to the charge
for malversation, the accused were also indicted before this Court for
three counts of falsification of public document by a public officer or
employee.

In the falsification cases, the accused offered to withdraw their plea

of "not guilty" and substitute the same with a plea of "guilty",
provided, the mitigating circumstances of confession or plea of guilt
and voluntary surrender will be appreciated in their favor. In the
alternative, if such proposal is not acceptable, said accused proposed
instead to substitute their plea of "not guilty" to the crime of
falsification of public document by a public officer or employee with a
plea of "guilty", but to the lesser crime of falsification of a public
document by a private individual. On the other hand, in the
malversation cases, the accused offered to substitute their plea of "not
guilty" thereto with a plea of "guilty", but to the lesser crime of
failure of an accountable officer to render accounts.
Insofar as the falsification cases are concerned, the prosecution found
as acceptable the proposal of the accused to plead "guilty" to the
lesser crime of falsification of public document by a private
individual. The prosecution explained:

"With respect to the falsification cases earlier mentioned, it appears

that the act of the accused in pleading guilty for a lesser offense of
falsification by a private individual defined and penalized under
Article 172 of the Revised Penal code will strengthen our cases against
the principal accused, Municipal Mayor Benedicto Kuizon, who
appears to be the master mind of these criminal acts."

Insofar as the malversation cases are concerned, the prosecution was

likewise amenable to the offer of said accused to plead "guilty" to the
lesser crime of failure of an accountable officer to render accounts
because:

"x x x JOSELITO RANIERO J. DAAN has already restituted the total

amount of ₱18,860.00 as per official receipt issued by the provincial
government of Leyte dated February 26, 2002. In short, the damage
caused to the government has already been restituted x x x. 3

The Sandiganbayan, in the herein assailed Resolution,4 dated March

25, 2004, denied petitioner’s Motion to Plea Bargain, despite
favorable recommendation by the prosecution, on the main ground
that no cogent reason was presented to justify its approval.5

The Sandiganbayan likewise denied petitioner's Motion for

Reconsideration in a Resolution dated May 31, 2004.

This compelled petitioner to file the present case for certiorari and
prohibition with prayer for the issuance of a temporary restraining
order and/ or writ of preliminary injunction under Rule 65 of the
Rules of Court.

Petitioner argues that the Sandiganbayan committed grave abuse of

discretion in denying his plea bargaining offer on the following
grounds: first, petitioner is not an accountable officer and he merely
affixed his signature on the payrolls on a "routinary basis," negating
any criminal intent; and that the amount involved is only ₱18,860.00,
which he already restituted.6

The petition is meritorious.

Plea bargaining in criminal cases is a process whereby the accused
and the prosecution work out a mutually satisfactory disposition of
the case subject to court approval. It usually involves the defendant's
pleading guilty to a lesser offense or to only one or some of the counts
of a multi-count indictment in return for a lighter sentence than that
for the graver charge.7

Plea bargaining is authorized under Section 2, Rule 116 of the Revised

Rules of Criminal Procedure, to wit:

SEC. 2. Plea of guilty to a lesser offense. — At arraignment, the

accused, with the consent of the offended party and the prosecutor,
may be allowed by the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged. After
arraignment but before trial, the accused may still be allowed to plead
guilty to said lesser offense after withdrawing his plea of not guilty.
No amendment of the complaint or information is necessary. (sec. 4,
cir. 38-98)

Ordinarily, plea bargaining is made during the pre-trial stage of the

proceedings. Sections 1 and 2, Rule 118 of the Rules of Court, require
plea bargaining to be considered by the trial court at the pre-trial
conference,8 viz:

SEC. 1. Pre-trial; mandatory in criminal cases. – In all criminal cases

cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and
Municipal Circuit Trial Court, the court shall, after arraignment and
within thirty (30) days from the date the court acquires jurisdiction
over the person of the accused, unless a shorter period is provided for
in special laws or circulars of the Supreme Court, order a pre-trial
conference to consider the following:

(a) plea bargaining;

(b) stipulation of facts;

(c) marking for identification of evidence of the parties;

(d) waiver of objections to admissibility of evidence;

(e) modification of the order of trial if the accused admits the

charge but interposes a lawful defense; and
 (f) such matters as will promote a fair and expeditious trial of
the criminal and civil aspects of the case.

SEC. 2. Pre-trial agreement. – All agreements or admissions made or

entered during the pre-trial conference shall be reduced in writing
and signed by the accused and counsel, otherwise, they cannot be used
against the accused. The agreements covering the matters referred to
in section 1 of this Rule shall be approved by the court. (Emphasis
supplied)

But it may also be made during the trial proper and even after the
prosecution has finished presenting its evidence and rested its case.
Thus, the Court has held that it is immaterial that plea bargaining was
not made during the pre-trial stage or that it was made only after the
prosecution already presented several witnesses.9

Section 2, Rule 116 of the Rules of Court presents the basic requisites
upon which plea bargaining may be made, i.e., that it should be with
the consent of the offended party and the prosecutor,10 and that the
plea of guilt should be to a lesser offense which is necessarily
included in the offense charged. The rules however use word may in
the second sentence of Section 2, denoting an exercise of discretion
upon the trial court on whether to allow the accused to make such
plea.11 Trial courts are exhorted to keep in mind that a plea of guilty
for a lighter offense than that actually charged is not supposed to be
allowed as a matter of bargaining or compromise for the convenience
of the accused.12

In People of the Philippines v. Villarama,13 the Court ruled that the

acceptance of an offer to plead guilty to a lesser offense is not
demandable by the accused as a matter of right but is a matter that is
addressed entirely to the sound discretion of the trial court,14 viz:

x x x In such situation, jurisprudence has provided the trial court and

the Office of the Prosecutor with a yardstick within which their
discretion may be properly exercised. Thus, in People v. Kayanan (L-
39355, May 31, 1978, 83 SCRA 437, 450), We held that the rules allow
such a plea only when the prosecution does not have sufficient evidence
to establish the guilt of the crime charged. In his concurring opinion
in People v. Parohinog (G.R. No. L-47462, February 28, 1980, 96 SCRA
373, 377), then Justice Antonio Barredo explained clearly and tersely
the rationale or the law:
x x x (A)fter the prosecution had already rested, the only basis on
which the fiscal and the court could rightfully act in allowing the
appellant to change his former plea of not guilty to murder to guilty to
the lesser crime of homicide could be nothing more nothing less than
the evidence already in the record. The reason for this being that
Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea for
a lesser offense is allowed was not and could not have been intended
as a procedure for compromise, much less bargaining.15 (Emphasis
supplied)

However, Villarama involved plea bargaining after the prosecution

had already rested its case.

As regards plea bargaining during the pre-trial stage, as in the present

case, the trial court's exercise of its discretion should neither be
arbitrary nor should it amount to a capricious and whimsical exercise
of discretion. Grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction
or, in other words, where the power is exercised in an arbitrary
manner by reason of passion, prejudice, or personal hostility; and it
must be so patent or gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined by law, or to
act at all in contemplation of law.16

In the present case, the Sandiganbayan rejected petitioner's plea offer

on the ground that petitioner and the prosecution failed to
demonstrate that the proposal would redound to the benefit of the
public. The Sandiganbayan believes that approving the proposal would
"only serve to trivialize the seriousness of the charges against them
and send the wrong signal to potential grafters in public office that
the penalties they are likely to face would be lighter than what their
criminal acts would have merited or that the economic benefits they
are likely to derive from their criminal activities far outweigh the
risks they face in committing them; thus, setting to naught the
deterrent value of the laws intended to curb graft and corruption in
government."171avvphi1

Apparently, the Sandiganbayan has proffered valid reasons in

rejecting petitioner's plea offer. However, subsequent events and
higher interests of justice and fair play dictate that petitioner's plea
offer should be accepted. The present case calls for the judicious
exercise of this Court's equity jurisdiction -
Equity as the complement of legal jurisdiction seeks to reach and do
complete justice where courts of law, through the inflexibility of their
rules and want of power to adapt their judgments to the special
circumstances of cases, are incompetent so to do. Equity regards the
spirit of and not the letter, the intent and not the form, the substance
rather than the circumstance, as it is variously expressed by different
courts.18

and of its power of control and supervision over the proceedings of

lower courts,19 in order to afford equal justice to petitioner.

In People of the Philippines v. Estrada,20 the Sandiganbayan, in its

Resolution dated March 14, 2007, approved the Plea Bargaining
Agreement entered into by the prosecution and one of the accused,
Charlie "Atong" Ang. The agreement provided that the accused
undertakes to assist in the prosecution of the case and promises to
return the amount of ₱25,000,000.00. In approving the Plea
Bargaining Agreement, the Sandiganbayan took into consideration the
timeliness of the plea bargaining and whether the agreement complied
with the requirements of Section 2, Rule 116 of the Rules of Court.
The Sandigabayan noted that the accused had already withdrawn his
earlier plea of "not guilty"; and that the prosecution consented to the
plea of guilt to a lesser offense; and the lesser offense, which is
Corruption of Public Officials in relation to Indirect Bribery, is
necessarily included in the offense charged, which is Plunder.21

The Court sees no reason why the standards applied by

the Sandiganbayan to Estrada should not be applied to the present
case. Records show that there was a favorable recommendation by the
Office of the Special Prosecutor to approve petitioner's motion to plea
bargain. Thus, in its Memorandum dated August 16, 2002, the Office
of the Special Prosecutor rationalized:

In the cases at bar, there is no dispute that JOSELITO RANIERO J.

DAAN has already restituted the total amount of ₱18,860.00 as per
official receipt issued by the provincial government of Leyte dated
February 26, 2002. In short, the damage caused to the government
has already been restituted by the accused.

There is also no dispute that accused DAAN voluntarily surrendered in

the instant cases. Moreover, the accused is also willing to plead guilty
to a lesser offense which to our mind, merits consideration.
With respect to the falsification cases earlier mentioned, it appears
that the act of the accused in pleading guilty for a lesser offense of
falsification by private individual defined and penalized under Article
172 of the Revised Penal Code will strengthen our cases against the
principal accused, the Municipal Mayor Benedicto Kuizon, who
appears to be the master mind of these criminal acts. After all, the
movants herein JOSELITO RANIERO J. DAAN was merely designated as
draftsman detailed as foreman/timekeeper of the Municipality of
Bato, Leyte.22

Moreover, the lesser offenses of Falsification by Private Individuals

and Failure to Render Account by an Accountable Officer are
necessarily included in the crimes of Falsification of Public Documents
and Malversation of Public Funds, respectively, with which petitioner
was originally charged.

Under Article 171, paragraph 4 of the Revised Penal Code, for the
crime of Falsification of Public Documents through an untruthful
narration of facts to be established, the following elements must
concur: (a) the offender makes in a document untruthful statements
in a narration of facts; (b) the offender has a legal obligation to
disclose the truth of the facts narrated; (c) the facts narrated by the
offender are absolutely false; and (d) the perversion of truth in the
narration of facts was made with the wrongful intent of injuring a
third person.23

On the other hand, Falsification by Private Individuals penalized

under Article 172, paragraph 1 of the Revised Penal Code has the
following elements: (a) the offender is a private individual or a
public officer or employee who did not take advantage of his
official position; (b) the offender committed any of the acts of
falsification enumerated under Article 171 of the Revised Penal Code;
and (c) the falsification was committed in a public or official or
commercial document.24

As regards the crime of Malversation of Public Funds defined and

penalized under Article 217 of the Revised Penal Code, with which
petitioner was also charged, the elements are as follows: (a) the
offender is a public officer; (b) he has custody or control of funds or
property by reason of the duties of his office; (c) the funds or property
involved are public funds or property for which he is accountable; and
(d) he has appropriated, taken or misappropriated, or has consented
to, or through abandonment or negligence permitted, the taking by
another person of such funds or property.25 Article 217 also provides
that the failure of the public officer to have duly forthcoming such
public funds or property, upon demand by a duly authorized officer,
"shall be prima facie evidence that he has put such missing funds or
property to personal use." In this regard, it has been ruled that once
such presumption is rebutted, then it is completely destroyed; in fact,
the presumption is never deemed to have existed at all.26

Meanwhile, under Article 218 of the Revised Penal Code, Failure to

Render Account by an Accountable Officer, the lesser offense which
petitioner seeks to plead guilty of, the following elements must
concur: (a) the offender is a public officer; (b) the offender must be
an accountable officer for public funds or property; (c) the offender is
required by law or regulation to render accounts to the COA or to a
provincial auditor; and (d) the offender fails to render an account for
a period of two months after such accounts should be rendered. 27

Section 5, Rule 120 of the Rules of Court states when an offense

includes or is included in the other, to wit:

SEC. 5. When an offense includes or is included in another. — An

offense charged necessarily includes the offense proved when some of
the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense
charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those
constituting the latter.

An offense may be said to necessarily include another when some of

the essential elements or ingredients of the former as alleged in
the complaint or information constitute the latter. And vice versa,
an offense may be said to be necessarily included in another when the
essential ingredients of the former constitute or form part of those
constituting the latter.28

In this case, the allegations in the Informations filed against

petitioner are sufficient to hold petitioner liable for the lesser
offenses. Thus, in the charge for Falsification of Public Documents,
petitioner may plead guilty to the lesser offense of Falsification by
Private Individuals inasmuch as it does not appear that petitioner took
advantage of his official position in allegedly falsifying the timebook
and payroll of the Municipality of Bato, Leyte. In the same vein, with
regard to the crime of Malversation of Public Funds, while the
Informations contain allegations which make out a case for
Malversation against petitioner, nevertheless, absent the element of
conversion, theoretically, petitioner may still be held liable for Failure
to Render Account by an Accountable Officer if it is shown that the
failure to render account was in violation of a law or regulation that
requires him to render such an accounting within the prescribed
period.

Given, therefore, that some of the essential elements of offenses

charged in this case likewise constitute the lesser offenses, then
petitioner may plead guilty to such lesser offenses.

Finally, as propounded by petitioner, indeed, he is not an accountable

officer in that the nature of his duty as foreman/timekeeper does not
permit or require possession or custody of local government
funds,29 not to mention that petitioner has already restituted the
amount of ₱18,860.00 involved in this case. Unlike Estrada which
involves a crime punishable by reclusion perpetua to death,30 and a
whopping ₱25,000,000.00 taken from the public coffers, this case
tremendously pales in comparison.

Under the peculiar circumstances of the present case, where gross

inequity will result in a discriminatory dispensation of justice, the
Court will not hesitate to intervene in order to equalize the imbalance.

WHEREFORE, the petition is GRANTED. The Resolutions dated March

25, 2004 and May 31, 2004 are SET ASIDE. The Sandiganbayan is
hereby ORDERED to grant petitioner's Motion to Plea Bargain. Let
records of this case be REMANDED to the Sandiganbayan for further
proceedings in accordance with this Decision.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 188314 January 10, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
KHADDAFY JANJALANI, GAMAL B. BAHARAN a.k.a. Tapay, ANGELO
TRINIDAD a.k.a. Abu Khalil, GAPPAL BANNAH ASALI a.k.a. Maidan
or Negro, JAINAL SALI a.k.a. Abu Solaiman, ROHMAT
ABDURROHIM a.k.a. Jackie or Zaky, and other JOHN and JANE
DOES, Accused,
GAMAL B. BAHARAN a.k.a. Tapay, ANGELO TRINIDAD a.k.a. Abu
Khalil, and ROHMAT ABDURROHIM a.k.a. Abu Jackie or
Zaky, Accused-Appellants.

DECISION

SERENO, J.:

Before the Court is an appeal from the Decision of the Court of

Appeals (CA) dated 30 June 2008, which affirmed the Decision of the
Regional Trial Court of Makati City in Criminal Case Nos. 05-476 and
05-4777 dated 18 October 2005. The latter Decision convicted the
three accused-appellants – namely, Gamal B. Baharan a.k.a. Tapay,
Angelo Trinidad a.k.a. Abu Khalil, and Rohmat Abdurrohim a.k.a. Abu
Jackie or Zaky – of the complex crime of multiple murder and multiple
frustrated murder, and sentenced them to suffer the penalty of death
by lethal injection. The CA modified the sentence to reclusion
perpetua as required by Republic Act No. 9346 (Act Abolishing the
Imposition of Death Penalty).

Statement of Facts

The pertinent facts, as determined by the trial court, are as follows:

On 14 February 2005, an RRCG bus was plying its usual southbound

route, from its Navotas bus terminal towards its Alabang bus terminal
via Epifanio de los Santos Avenue (EDSA). Around 6:30 to 7:30 in the
evening, while they were about to move out of the Guadalupe-EDSA
southbound bus stop, the bus conductor noticed two men running
after the bus. The two insisted on getting on the bus, so the conductor
obliged and let them in.

According to Elmer Andales, the bus conductor, he immediately

became wary of the two men, because, even if they got on the bus
together, the two sat away from each other – one sat two seats behind
the driver, while the other sat at the back of the bus. At the time,
there were only 15 passengers inside the bus. He also noticed that the
eyes of one of the men were reddish. When he approached the person
near the driver and asked him whether he was paying for two
passengers, the latter looked dumb struck by the question. He then
stuttered and said he was paying for two and gave PhP20. Andales
grew more concerned when the other man seated at the back also paid
for both passengers. At this point, Andales said he became more
certain that the two were up to no good, and that there might be a
holdup.

Afterwards, Andales said he became more suspicious because both

men kept on asking him if the bus was going to stop at Ayala Avenue.
The witness also noticed that the man at the back appeared to be
slouching, with his legs stretched out in front of him and his arms
hanging out and hidden from view as if he was tinkering with
something. When Andales would get near the man, the latter would
glare at him. Andales admitted, however, that he did not report the
suspicious characters to the police.

As soon as the bus reached the stoplight at the corner of Ayala Avenue
and EDSA, the two men insisted on getting off the bus. According to
Andales, the bus driver initially did not want to let them off the bus,
because a Makati ordinance prohibited unloading anywhere except at
designated bus stops. Eventually, the bus driver gave in and allowed
the two passengers to alight. The two immediately got off the bus and
ran towards Ayala Avenue. Moments after, Andales felt an explosion.
He then saw fire quickly engulfing the bus. He ran out of the bus
towards a nearby mall. After a while, he went back to where the bus
was. He saw their bus passengers either lying on the ground or
looking traumatized. A few hours after, he made a statement before
the Makati Police Station narrating the whole incident.

The prosecution presented documents furnished by the Department of

Justice, confirming that shortly before the explosion, the
spokesperson of the Abu Sayyaf Group – Abu Solaiman – announced
over radio station DZBB that the group had a Valentine’s Day "gift" for
former President Gloria Macapagal-Arroyo. After the bombing, he
again went on radio and warned of more bomb attacks.

As stipulated during pretrial, accused Trinidad gave ABS-CBN News

Network an exclusive interview some time after the incident,
confessing his participation in the Valentine’s Day bombing incident.
In another exclusive interview on the network, accused Baharan
likewise admitted his role in the bombing incident. Finally, accused
Asali gave a television interview, confessing that he had supplied the
explosive devices for the 14 February 2005 bombing. The bus
conductor identified the accused Baharan and Trinidad, and confirmed
that they were the two men who had entered the RRCG bus on the
evening of 14 February.

Members of the Abu Sayyaf Group – namely Khaddafy Janjalani, Gamal

B. Baharan, Angelo Trinidad, Gappal Bannah Asali, Jainal Asali,
Rohmat Abdurrohim a.k.a. Abu Jackie or Zaky, and other "John" and
"Jane Does" – were then charged with multiple murder and multiple
frustrated murder. Only Baharan, Trinidad, Asali, and Rohmat were
arrested, while the other accused remain at-large.

On their arraignment for the multiple murder charge (Crim. Case No.
05-476), Baharan, Trinidad, and Asali all entered a plea of guilty. On
the other hand, upon arraignment for the multiple frustrated murder
charge (Crim. Case No. 05-477), accused Asali pled guilty. Accused
Trinidad and Baharan pled not guilty. Rohmat pled not guilty to both
charges. During the pretrial hearing, the parties stipulated the
following:

1.) The jurisdiction of this court over the offenses charged.

2.) That all three accused namely alias Baharan, Trinidad, and
Asali admitted knowing one another before February 14, 2005.

3.) All the same three accused likewise admitted that a bomb
exploded in the RRCG bus while the bus was plying the EDSA
route fronting the MRT terminal which is in front of the Makati
Commercial Center.

4.) Accused Asali admitted knowing the other accused alias

Rohmat whom he claims taught him how to make explosive
devices.

5.) The accused Trinidad also admitted knowing Rohmat before

the February 14 bombing incident.

6.) The accused Baharan, Trinidad, and Asali all admitted to

causing the bomb explosion inside the RRCG bus which left four
people dead and more or less forty persons injured.
 7.) Both Baharan and Trinidad agreed to stipulate that within
the period March 20-24 each gave separate interviews to the
ABS-CBN news network admitting their participation in the
commission of the said crimes, subject of these cases.

8.) Accused Trinidad and Baharan also admitted to pleading

guilty to these crimes, because they were guilt-stricken after
seeing a man carrying a child in the first bus that they had
entered.

9.) Accused Asali likewise admitted that in the middle of March

2005 he gave a television news interview in which he admitted
that he supplied the explosive devices which resulted in this
explosion inside the RRCG bus and which resulted in the filing of
these charges.

10.) Finally, accused Baharan, Trinidad, and Asali admitted that

they are members of the Abu Sayyaf.1

In the light of the pretrial stipulations, the trial court asked whether
accused Baharan and Trinidad were amenable to changing their "not
guilty" pleas to the charge of multiple frustrated murder, considering
that they pled "guilty" to the heavier charge of multiple murder,
creating an apparent inconsistency in their pleas. Defense counsel
conferred with accused Baharan and Trinidad and explained to them
the consequences of the pleas. The two accused acknowledged the
inconsistencies and manifested their readiness for re-arraignment.
After the Information was read to them, Baharan and Trinidad pled
guilty to the charge of multiple frustrated murder.2

After being discharged as state witness, accused Asali testified that

while under training with the Abu Sayyaf in 2004, Rohmat, a.k.a Abu
Jackie or Zaky, and two other persons taught him how to make bombs
and explosives. The trainees were told that they were to wage battles
against the government in the city, and that their first mission was to
plant bombs in malls, the Light Railway Transit (LRT), and other parts
of Metro Manila.

As found by the trial court, Asali, after his training, was required by
the Abu Sayyaf leadership, specifically Abu Solaiman and Rohmat, to
secure eight kilos of TNT, a soldering gun, aluminum powder, a tester,
and Christmas lights, all of which he knew would be used to make a
bomb. He then recalled that sometime in November to December
2004, Trinidad asked him for a total of 4 kilos of TNT – that is, 2 kilos
on two separate occasions. Rohmat allegedly called Asali to confirm
that Trinidad would get TNT from Asali and use it for their first
mission. The TNT was allegedly placed in two buses sometime in
December 2004, but neither one of them exploded.

Asali then testified that the night before the Valentine’s Day bombing,
Trinidad and Baharan got another two kilos of TNT from him. Late in
the evening of 14 February, he received a call from Abu Solaiman. The
latter told Asali not to leave home or go to crowded areas, since the
TNT taken by Baharan and Trinidad had already been exploded in
Makati. Thirty minutes later, Trinidad called Asali, repeating the
warning of Abu Solaiman. The next day, Asali allegedly received a call
from accused Rohmat, congratulating the former on the success of the
mission.3 According to Asali, Abu Zaky specifically said, "Sa wakas nag
success din yung tinuro ko sayo."

Assignment of Errors

Accused-appellants raise the following assignment of errors:

I. The trial court gravely erred in accepting accused-appellants’ plea

of guilt despite insufficiency of searching inquiry into the
voluntariness and full comprehension of the consequences of the said
plea.

II. The trial court gravely erred in finding that the guilt of accused-
appellants for the crimes charged had been proven beyond reasonable
doubt.4

First Assignment of Error

Accused-appellants Baharan and Trinidad argue that the trial court

did not conduct a searching inquiry after they had changed their plea
from "not guilty" to "guilty." The transcript of stenographic notes
during the 18 April 2005 re-arraignment before the Makati Regional
Trial Court is reproduced below:

Court : Anyway, I think what we should have to do, considering the

stipulations that were agreed upon during the last hearing, is to
address this matter of pleas of not guilty entered for the frustrated
murder charges by the two accused, Mr. Trinidad and Mr. Baharan,
because if you will recall they entered pleas of guilty to the multiple
murder charges, but then earlier pleas of not guilty for the frustrated
multiple murder charges remain… [I]s that not inconsistent
considering the stipulations that were entered into during the initial
pretrial of this case? [If] you will recall, they admitted to have caused
the bomb explosion that led to the death of at least four people and
injury of about forty other persons and so under the circumstances,
Atty Peña, have you discussed this matter with your clients?

………

Atty. Peña : Then we should be given enough time to talk with them. I
haven’t conferred with them about this with regard to the multiple
murder case.

………

Court : Okay. So let us proceed now. Atty. Peña, can you assist the two
accused because if they are interested in withdrawing their [pleas], I
want to hear it from your lips.

Atty. Peña : Yes, your Honor.

(At this juncture, Atty. Peña confers with the two accused, namely
Trinidad and Baharan)

I have talked to them, your Honor, and I have explained to them the
consequence of their pleas, your Honor, and that the plea of guilt to
the murder case and plea of not guilty to the frustrated multiple
murder actually are inconsistent with their pleas.

Court : With matters that they stipulated upon?

Atty. Peña : Yes, your Honor. So, they are now, since they already
plead guilt to the murder case, then they are now changing their
pleas, your Honor, from not guilty to the one of guilt. They are now
ready, your Honor, for re-arraignment.

………

INTERPRETER: (Read again that portion [of the information] and

translated it in Filipino in a clearer way and asked both accused what
their pleas are).
Your Honor, both accused are entering separate pleas of guilt to the
crime charged.

COURT : All right. So after the information was re-read to the accused,
they have withdrawn their pleas of not guilty and changed it to the
pleas of guilty to the charge of frustrated murder. Thank you. Are
there any matters you need to address at pretrial now? If there are
none, then I will terminate pretrial and accommodate…5

As early as in People v. Apduhan, the Supreme Court has ruled that

"all trial judges … must refrain from accepting with alacrity an
accused's plea of guilty, for while justice demands a speedy
administration, judges are duty bound to be extra solicitous in seeing
to it that when an accused pleads guilty, he understands fully the
meaning of his plea and the import of an inevitable conviction."6 Thus,
trial court judges are required to observe the following procedure
under Section 3, Rule 116 of the Rules of Court:

SEC. 3. Plea of guilty to capital offense; reception of evidence. — When

the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea and shall require the prosecution to prove
his guilt and the precise degree of culpability. The accused may also
present evidence in his behalf. (Emphasis supplied)

The requirement to conduct a searching inquiry applies more so in

cases of re-arraignment. In People v. Galvez, the Court noted that
since accused-appellant's original plea was "not guilty," the trial court
should have exerted careful effort in inquiring into why he changed
his plea to "guilty."7 According to the Court:

The stringent procedure governing the reception of a plea of guilt,

especially in a case involving the death penalty, is imposed upon the
trial judge in order to leave no room for doubt on the possibility that
the accused might have misunderstood the nature of the charge and
the consequences of the plea.8

Likewise, the requirement to conduct a searching inquiry should not

be deemed satisfied in cases in which it was the defense counsel who
explained the consequences of a "guilty" plea to the accused, as it
appears in this case. In People v. Alborida, this Court found that there
was still an improvident plea of guilty, even if the accused had already
signified in open court that his counsel had explained the
consequences of the guilty plea; that he understood the explanation of
his counsel; that the accused understood that the penalty of death
would still be meted out to him; and that he had not been intimidated,
bribed, or threatened.9

We have reiterated in a long line of cases that the conduct of a

searching inquiry remains the duty of judges, as they are mandated by
the rules to satisfy themselves that the accused had not been under
coercion or duress; mistaken impressions; or a misunderstanding of
the significance, effects, and consequences of their guilty plea.10 This
requirement is stringent and mandatory.11

Nevertheless, we are not unmindful of the context under which the re-
arraignment was conducted or of the factual milieu surrounding the
finding of guilt against the accused. The Court observes that accused
Baharan and Trinidad previously pled guilty to another charge –
multiple murder – based on the same act relied upon in the multiple
frustrated murder charge. The Court further notes that prior to the
change of plea to one of guilt, accused Baharan and Trinidad made two
other confessions of guilt – one through an extrajudicial confession
(exclusive television interviews, as stipulated by both accused during
pretrial), and the other via judicial admission (pretrial stipulation).
Considering the foregoing circumstances, we deem it unnecessary to
rule on the sufficiency of the "searching inquiry" in this instance.
Remanding the case for re-arraignment is not warranted, as the
accused’s plea of guilt was not the sole basis of the condemnatory
judgment under consideration.12

Second Assignment of Error

In People v. Oden, the Court declared that even if the requirement of

conducting a searching inquiry was not complied with, "[t]he manner
by which the plea of guilt is made … loses much of great significance
where the conviction can be based on independent evidence proving
the commission by the person accused of the offense charged."13 Thus,
in People v. Nadera, the Court stated:

Convictions based on an improvident plea of guilt are set aside only if

such plea is the sole basis of the judgment. If the trial court relied on
sufficient and credible evidence to convict the accused, the conviction
must be sustained, because then it is predicated not merely on the
guilty plea of the accused but on evidence proving his commission of
the offense charged.14 (Emphasis supplied.)
In their second assignment of error, accused-appellants assert that
guilt was not proven beyond reasonable doubt. They pointed out that
the testimony of the conductor was merely circumstantial, while that
of Asali as to the conspiracy was insufficient.

Insofar as accused-appellants Baharan and Trinidad are concerned,

the evidence for the prosecution, in addition to that which can be
drawn from the stipulation of facts, primarily consisted of the
testimonies of the bus conductor, Elmer Andales, and of the accused-
turned-state-witness, Asali. Andales positively identified accused
Baharan and Trinidad as the two men who had acted suspiciously
while inside the bus; who had insisted on getting off the bus in
violation of a Makati ordinance; and who had scampered away from
the bus moments before the bomb exploded. On the other hand, Asali
testified that he had given accused Baharan and Trinidad the TNT
used in the bombing incident in Makati City. The guilt of the accused
Baharan and Trinidad was sufficiently established by these
corroborating testimonies, coupled with their respective judicial
admissions (pretrial stipulations) and extrajudicial confessions
(exclusive television interviews, as they both stipulated during
pretrial) that they were indeed the perpetrators of the Valentine’s Day
bombing.15 Accordingly, the Court upholds the findings of guilt made
by the trial court as affirmed by the Court of Appeals.

Anent accused Rohmat, the evidence for the prosecution consisted of

the testimony of accused-turned-state-witness Asali. Below is a
reproduction of the transcript of stenographic notes on the state
prosecutor’s direct examination of state-witness Asali during the 26
May 2005 trial:

Q : You stated that Zaky trained you and Trinidad. Under what
circumstances did he train you, Mr. Witness, to assemble those
explosives, you and Trinidad?

A : Abu Zaky, Abu Solaiman, Khadaffy Janjalani, the three of

them, that Angelo Trinidad and myself be the one to be trained
to make an explosive, sir.

Q : Mr. witness, how long that training, or how long did it take
that training?

A : If I am not mistaken, we were thought to make bomb about

one month and two weeks.
………

Q : Now, speaking of that mission, Mr. witness, while you were

still in training at Mr. Cararao, is there any mission that you
undertook, if any, with respect to that mission?

………

A : Our first mission was to plant a bomb in the malls, LRT, and
other parts of Metro Manila, sir.16

The witness then testified that he kept eight kilos of TNT for
accused Baharan and Trinidad.

Q : Now, going back to the bomb. Mr. witness, did you know
what happened to the 2 kilos of bomb that Trinidad and Tapay
took from you sometime in November 2004?

A : That was the explosive that he planted in the G-liner, which

did not explode.

Q : How did you know, Mr. witness?

A : He was the one who told me, Mr. Angelo Trinidad, sir.

………

Q : What happened next, Mr. witness, when the bomb did not
explode, as told to you by Trinidad?

A : On December 29, Angelo Trinidad got 2 more kilos of TNT

bombs.

………

Q : Did Trinidad tell you why he needed another amount of

explosive on that date, December 29, 2004? Will you kindly tell
us the reason why?

………

A : He told me that Abu Solaiman instructed me to get the TNT

so that he could detonate a bomb
………

Q : Were there any other person, besides Abu Solaiman, who

called you up, with respect to the taking of the explosives from
you?

A : There is, sir… Abu Zaky, sir, called up also.

Q : What did Abu Zaky tell you when he called you up?

A : He told me that "this is your first mission."

Q : Please enlighten the Honorable Court. What is that mission

you are referring to?

A : That is the first mission where we can show our anger

towards the Christians.

………

Q : The second time that he got a bomb from you, Mr. witness,
do you know if the bomb explode?

A : I did not know what happened to the next 2 kilos taken by

Angelo Trinidad from me until after I was caught, because I was
told by the policeman that interviewed me after I was arrested
that the 2 kilos were planted in a bus, which also did not
explode.

Q : So besides these two incidents, were there any other

incidents that Angelo Trinidad and Tapay get an explosive for
you, Mr. witness?

………

A : If I am not mistaken, sir, on February 13, 2005 at 6:30 p.m.

Q : Who got from you the explosive Mr. witness?

A : It’s Angelo Trinidad and Tapay, sir.

………
Q : How many explosives did they get from you, Mr. witness, at
that time?

A : They got 2 kilos TNT bomb, sir.

Q : Did they tell you, Mr. witness, where are they going to use
that explosive?

A : No, sir.

Q : Do you know, Mr. witness, what happened to the third batch

of explosives, which were taken from you by Trinidad and
Tapay?

………

A : That is the bomb that exploded in Makati, sir.

Q : Why did you know, Mr. witness?

A : Because I was called in the evening of February 14 by Abu

Solaiman. He told me not to leave the house because the
explosive that were taken by Tapay and Angelo Trinidad
exploded.

………

Q : Was there any other call during that time, Mr. Witness?

………

A : I was told by Angelo Trinidad not to leave the house because

the explosive that he took exploded already, sir.

Q : How sure were you, Mr. witness, at that time, that indeed,
the bomb exploded at Makati, beside the call of Abu Solaiman
and Trinidad?

A : It was told by Abu Solaiman that the bombing in Makati

should coincide with the bombing in General Santos.

………
 A : He told it to me, sir… I cannot remember the date anymore,
but I know it was sometime in February 2005.

Q : Any other call, Mr. witness, from Abu Solaiman and Trinidad
after the bombing exploded in Makati, any other call?

………

A : There is, sir… The call came from Abu Zaky.

Q : What did Abu Zaky tell you, Mr. witness?

A : He just greeted us congratulations, because we have a

successful mission.

………

A : He told me that "sa wakas, nag success din yung tinuro ko

sayo."

………

Q : By the way, Mr. witness, I would just like to clarify this. You
stated that Abu Zaky called you up the following day, that was
February 15, and congratulating you for the success of the
mission. My question to you, Mr. witness, if you know what is
the relation of that mission, wherein you were congratulated by
Abu Zaky, to the mission, which have been indoctrinated to you,
while you were in Mt. Cararao, Mr. witness?

A : They are connected, sir.

Q : Connected in what sense, Mr. witness?

A : Because when we were undergoing training, we were told

that the Abu Sayyaf should not wage war to the forest, but also
wage our battles in the city.

Q : Wage the battle against who, Mr. witness?

A : The government, sir.17

What can be culled from the testimony of Asali is that the Abu Sayyaf
Group was determined to sow terror in Metro Manila, so that they
could show their "anger towards the Christians."18 It can also be seen
that Rohmat, together with Janjalani and Abu Solaiman, had carefully
planned the Valentine’s Day bombing incident, months before it
happened. Rohmat had trained Asali and Trinidad to make bombs and
explosives. While in training, Asali and others were told that their
mission was to plant bombs in malls, the LRT, and other parts of
Metro Manila. According to Asali, Rohmat called him on 29 December
2004 to confirm that Trinidad would get two kilos of TNT from Asali,
as they were "about to commence" their "first mission."19 They made
two separate attempts to bomb a bus in Metro Manila, but to no avail.
The day before the Valentine’s Day bombing, Trinidad got another two
kilos of TNT from Asali. On Valentine’s Day, the Abu Sayyaf Group
announced that they had a gift for the former President, Gloria
Macapagal-Arroyo. On their third try, their plan finally succeeded.
Right after the bomb exploded, the Abu Sayyaf Group declared that
there would be more bombings in the future. Asali then received a call
from Rohmat, praising the former: "Sa wakas nag success din yung
tinuro ko sayo."20

In the light of the foregoing evidence, the Court upholds the finding of
guilt against Rohmat. Article 17 of the Revised Penal Code reads:

Art. 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act

2. Those who directly force or induce others to commit it

3. Those who cooperate in the commission of the offense by another

act without which it would not have been accomplished

Accused Rohmat is criminally responsible under the second

paragraph, or the provision on "principal by inducement." The
instructions and training he had given Asali on how to make bombs –
coupled with their careful planning and persistent attempts to bomb
different areas in Metro Manila and Rohmat’s confirmation that
Trinidad would be getting TNT from Asali as part of their mission –
prove the finding that Rohmat’s co-inducement was the determining
cause of the commission of the crime.21 Such "command or advice
[was] of such nature that, without it, the crime would not have
materialized."22lawphi1
Further, the inducement was "so influential in producing the criminal
act that without it, the act would not have been performed." 23 In
People v. Sanchez, et al., the Court ruled that, notwithstanding the
fact that Mayor Sanchez was not at the crime scene, evidence proved
that he was the mastermind of the criminal act or the principal by
inducement. Thus, because Mayor Sanchez was a co-principal and co-
conspirator, and because the act of one conspirator is the act of all,
the mayor was rendered liable for all the resulting crimes.24 The same
finding must be applied to the case at bar.

The Court also affirms the finding of the existence of conspiracy

involving accused Baharan, Trinidad, and Rohmat. Conspiracy was
clearly established from the "collective acts of the accused-appellants
before, during and after the commission of the crime." As correctly
declared by the trial court in its Omnibus Decision:

Asali’s clear and categorical testimony, which remains unrebutted on

its major points, coupled with the judicial admissions freely and
voluntarily given by the two other accused, are sufficient to prove the
existence of a conspiracy hatched between and among the four
accused, all members of the terrorist group Abu Sayyaf, to wreak
chaos and mayhem in the metropolis by indiscriminately killing and
injuring civilian victims by utilizing bombs and other similar
destructive explosive devices.

While said conspiracy involving the four malefactors has not been
expressly admitted by accused Baharan, Angelo Trinidad, and Rohmat,
more specifically with respect to the latter’s participation in the
commission of the crimes, nonetheless it has been established by
virtue of the aforementioned evidence, which established the
existence of the conspiracy itself and the indispensable participation
of accused Rohmat in seeing to it that the conspirators’ criminal
design would be realized.

It is well-established that conspiracy may be inferred from the acts of

the accused, which clearly manifests a concurrence of wills, a common
intent or design to commit a crime (People v. Lenantud, 352 SCRA
544). Hence, where acts of the accused collectively and individually
demonstrate the existence of a common design towards the
accomplishment of the same unlawful purpose, conspiracy is evident
and all the perpetrators will be held liable as principals (People v.
Ellado, 353 SCRA 643).25
In People v. Geronimo, the Court pronounced that it would be justified
in concluding that the defendants therein were engaged in a
conspiracy "when the defendants by their acts aimed at the same
object, one performing one part and the other performing another
part so as to complete it, with a view to the attainment of the same
object; and their acts, though apparently independent, were in fact
concerted and cooperative, indicating closeness of personal
association, concerted action and concurrence of sentiments."26

Accused contend that the testimony of Asali is inadmissible pursuant

to Sec. 30, Rule 130 of the Rules of Court. It is true that under the
rule, statements made by a conspirator against a co-conspirator are
admissible only when made during the existence of the conspiracy.
However, as the Court ruled in People v. Buntag, if the declarant
repeats the statement in court, his extrajudicial confession becomes a
judicial admission, making the testimony admissible as to both
conspirators.27 Thus, in People v. Palijon, the Court held the following:

… [W]e must make a distinction between extrajudicial and judicial

confessions. An extrajudicial confession may be given in evidence
against the confessant but not against his co-accused as they are
deprived of the opportunity to cross-examine him. A judicial
confession is admissible against the declarant’s co-accused since the
latter are afforded opportunity to cross-examine the former. Section
30, Rule 130 of the Rules of Court applies only to extrajudicial acts or
admissions and not to testimony at trial where the party adversely
affected has the opportunity to cross-examine the declarant.
Mercene’s admission implicating his co-accused was given on the
witness stand. It is admissible in evidence against appellant Palijon.
Moreover, where several accused are tried together for the same
offense, the testimony of a co-accused implicating his co-accused is
competent evidence against the latter.28

WHEREFORE, the Petition is DENIED. The Decision of the Regional

Trial Court of Makati, as affirmed with modification by the Court of
Appeals, is hereby AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 195956 March 11, 2015

ABS-CBN CORPORATION, Petitioner,

vs.
FELIPE GOZON, GILBERTO R. DUAVIT, JR., MARISSA L. FLORES,
JESSICA A. SORO, GRACE DELA PENA-REYES, JOHN OLIVER T.
MANALASTAS, JOHN DOES AND JANE DOES, Respondents.

DECISION

LEONEN, J.:

The main issue in this case is whether there is probable cause to

charge respondents with infringement under Republic Act No. 8293,
otherwise known as the Intellectual Property Code. The resolution of
this issue requires clarification of the concept of "copyrightable
material" in relation to material that is rebroadcast live as a news
story. We are also asked to rule on whether criminal prosecution for
infringement of copyrightable material, such as live rebroadcast, can
be negated by good faith.

ABS-CBN Corporation (ABS-CBN) filed the Petition for Review on

Certiorari1 to assail the November 9, 2010 Decision2 and the March 3,
2011 Resolution3 of the Court of Appeals. The Court of Appeals
reinstated the Department of Justice Resolution dated August 1, 2005
that ordered the withdrawal of the Information finding probable cause
for respondents’ violation of Sections 1774 and 2115 of the Intellectual
Property Code.6 Respondents are officers and employees of GMA
Network, Inc. (GMA-7). They are: Felipe Gozon (Gozon), GMA-7
President; Gilberto R. Duavit, Jr. (Duavit, Jr.), Executive Vice-
President; Marissa L. Flores (Flores), Vice-President for New and
Public Affairs; Jessica A. Soho (Soho), Director for News; Grace Dela
Peña-Reyes (Dela Peña-Reyes), Head of News and Public Affairs; John
Oliver Manalastas (Manalastas), Program Manager; and others.

The controversy arose from GMA-7’s news coverage on the

homecoming of Filipino overseas worker and hostage victim Angelo
dela Cruz on July 22, 2004. As summarized by the Court of Appeals:

Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi

militants and as a condition for his release, a demand was made for
the withdrawal of Filipino troops in Iraq. After negotiations, he was
released by his captors and was scheduled to return to the country in
the afternoon of 22 July 2004. Occasioned by said homecoming and
the public interest it generated, both . . . GMA Network, Inc. . . . and
[petitioner] made their respective broadcasts and coverage of the live
event.7

ABS-CBN "conducted live audio-video coverage of and broadcasted the

arrival of Angelo dela Cruz at the Ninoy Aquino International Airport
(NAIA) and the subsequent press conference."8 ABS-CBN allowed
Reuters Television Service (Reuters) to air the footages it had taken
earlier under a special embargo agreement.9

ABS-CBN alleged that under the special embargo agreement, any of

the footages it took would be for the "use of Reuter’s international
subscribers only, and shall be considered and treated by Reuters
under ‘embargo’ against use by other subscribers in the Philippines. . .
. [N]o other Philippine subscriber of Reuters would be allowed to use
ABS-CBN footage without the latter’s consent."10

GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Peña-Reyes,

and Manalastas are connected, "assigned and stationed news
reporters and technical men at the NAIA for its live broadcast and
non-live news coverage of the arrival of dela Cruz."11 GMA-7
subscribes to both Reuters and Cable News Network (CNN). It
received a live video feed of the coverage of Angelo dela Cruz’s arrival
from Reuters.12

GMA-7 immediately carried the live news feed in its program "Flash
Report," together with its live broadcast.13 Allegedly, GMA-7 did not
receive any notice or was not aware that Reuters was airing footages
of ABS-CBN.14 GMA-7’s news control room staff saw neither the "No
Access Philippines" notice nor a notice that the video feed was under
embargo in favor of ABS-CBN.15

On August 13, 2004, ABS-CBN filed the Complaint for copyright

infringement under Sections 17716 and 21117 of the Intellectual
Property Code.18

On December 3, 2004, Assistant City Prosecutor Dindo Venturanza

issued the Resolution19 finding probable cause to indict Dela Peña-
Reyes and Manalastas.20 Consequently, the Information21 for violation
of the Intellectual Property Code was filed on December 17, 2004. It
reads:

That on or about the 22nd of July 2004, in Quezon City, Philippines,

the above-named accused, conspiring together, confederating with
and mutually helping each other, being the Head of News Operations
and the Program Manager, respectively, for the News and Public
Affairs Department of GMA Network, Inc., did then and there,
willfully, unlawfully and feloniously use and broadcast the footage of
the arrival of Angelo [d]ela Cruz at the Ninoy Aquino International
Airport of which ABS-CBN holds the exclusive ownership and
copyright by then and there using, airing, and broadcasting the said
footage in its news program "FLASH REPORT" without first obtaining
the consent or authority of said copyright owner, to their damage and
prejudice.

Contrary to law.22

On January 4, 2005, respondents filed the Petition for Review before

the Department of Justice.23 In the Resolution (Gonzalez Resolution)
dated August 1, 2005, Department of Justice Secretary Raul M.
Gonzalez (Secretary Gonzalez) ruled in favor of respondents and held
that good faith may be raised as a defense in the case. 24 The
dispositive portion of the Resolution reads:

WHEREFORE, THE PETITION FOR REVIEW FILED BY GMA-7 in I.S. No.

04-10458 is considered meritorious and is hereby GRANTED. This case
is hereby Dismissed, the resolution of the City Prosecutor of Quezon
City is hereby reversed and the same is ordered to withdraw the
information if any and report action taken to this office within ten
(10) days.25 (Emphasis in the original)

Both parties moved for reconsideration of the Gonzalez Resolution.26

Meanwhile, on January 19, 2005, the trial court granted the Motion to
Suspend Proceedings filed earlier by Dela Peña-Reyes and
Manalastas.27 The trial court Order reads:

Perusing the motion, the court finds that a petition for review was
filed with the Department of Justice on January 5, 2005 as confirmed
by the public prosecutor. Under Section 11 (c), Rule 116 of the Rules of
Criminal Procedure, once a petition for review is filed with the
Department of Justice, a suspension of the criminal proceedings may
be allowed by the court.

Accordingly, to allow the Department of Justice the opportunity to act

on said petition for review, let the proceedings on this case be
suspended for a period of sixty (60) days counted from January 5,
2005, the date the petition was filed with the Department of Justice.
The arraignment of the accused on February 1, 2005 is accordingly
cancelled. Let the arraignment be rescheduled to March 8, 2005 at
8:30 a.m. The accused through counsel are notified in open court.

SO ORDERED.28

On June 29, 2010, Department of Justice Acting Secretary Alberto C.

Agra (Secretary Agra) issued the Resolution (Agra Resolution) that
reversed the Gonzalez Resolution and found probable cause to charge
Dela Peña-Reyes and Manalastas for violation of the Intellectual
Property Code.29 Secretary Agra also found probable cause to indict
Gozon, Duavit, Jr., Flores, and Soho for the same violation. 30 He ruled
that:

[w]hile good faith may be a defense in copyright infringement, the

same is a disputable presumption that must be proven in a full-blown
trial. Disputable presumptions may be contradicted and overcome by
other evidence. Thus, a full-blown trial is the proper venue where
facts, issues and laws are evaluated and considered. The very purpose
of trial is to allow a party to present evidence to overcome the
disputable presumptions involved.31

The dispositive portion of the Agra Resolution provides:

WHEREFORE, premises considered:

(a) The Motion for Reconsideration filed by appellees ABS-CBN

Broadcasting Corporation (ABS-CBN) of our Resolution
promulgated on August 1, 2005 (Resolution No. 364, Series of
2005) and the Petition for Review filed by complainant-
appellant ABS-CBN in I.S. No. 04-10458 on April10, 2006, are
GRANTED and the City Prosecutor of Quezon City is hereby
ordered to file the necessary Information for violation of Section
177 and 211 of Republic Act No. 8293 against GMA-7. Felipe L.
Gozon, Gilberto R. Duavit, Jr., Marissa L.Flores, Jessica A. Soho,
Grace Dela Pena-Reyes, John Oliver T. Manalastas[.]
 ....

SO ORDERED.32 (Emphasis in the original)

Respondents assailed the Agra Resolution through the Petition for

Certiorari with prayer for issuance of a temporary restraining order
and/or Writ of Preliminary Injunction on September 2, 2010 before
the Court of Appeals. In the Resolution dated September 13, 2010, the
Court of Appeals granted the temporary restraining order preventing
the Department of Justice from enforcing the Agra Resolution.33

On November 9, 2010, the Court of Appeals rendered the Decision

granting the Petition and reversing and setting aside the Agra
Resolution.34 The Court of Appeals held that Secretary Agra committed
errors of jurisdiction in issuing the assailed Resolution. Resolving the
issue of copyright infringement, the Court of Appeals said:

Surely, private respondent has a copyright of its news coverage.

Seemingly, for airing said video feed, petitioner GMA is liable under
the provisions of the Intellectual Property Code, which was enacted
purposely to protect copyright owners from infringement. However, it
is an admitted fact that petitioner GMA had only aired a five (5)
second footage of the disputed live video feed that it had received
from Reuters and CNN as a subscriber. Indeed, petitioners had no
notice of the right of ownership of private respondent over the same.
Without notice of the "No Access Philippines" restriction of the live
video feed, petitioner cannot be faulted for airing a live video feed
from Reuters and CNN.

Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution,

the act of petitioners in airing the five (5) second footage was
undeniably attended by good faith and it thus serves to exculpate
them from criminal liability under the Code. While the Intellectual
Property Code is a special law, and thus generally categorized as
malum prohibitum, it bears to stress that the provisions of the Code
itself do not ipso facto penalize a person or entity for copyright
infringement by the mere fact that one had used a copyrighted work
or material.

Certainly so, in the exercise of one’s moral and economic or

copyrights, the very provisions of Part IV of the Intellectual Property
Code provide for the scope and limitations on copyright protection
under Section 184 and in fact permit fair use of copyrighted work
under Section 185. With the aforesaid statutory limitations on one’s
economic and copyrights and the allowable instances where the other
persons can legally use a copyrighted work, criminal culpability
clearly attaches only when the infringement had been knowingly and
intentionally committed.35 (Emphasis supplied)

The dispositive portion of the Decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby

GRANTED and the assailed Resolution dated 29 June 2010 REVERSED
and SET ASIDE. Accordingly, the earlier Resolution dated 1 August
2005, which ordered the withdrawal of the Information filed, if any,
against the petitioners for violation of Sections 177 and 211 of the
Intellectual Property Code, is hereby REINSTATED. No costs.

SO ORDERED.36 (Emphasis in the original)

ABS-CBN’s Motion for Reconsideration was denied.37 It then filed its

Petition for Review before this court assailing the Decision and
Resolution of the Court of Appeals.38

The issues for this court’s consideration are:

First, whether Secretary Agra committed errors of jurisdiction in the

Resolution dated June 29, 2010 and, therefore, whether a petition for
certiorari was the proper remedy in assailing that Resolution;

Second, whether news footage is copyrightable under the law;

Third, whether there was fair use of the broadcast material;

Fourth, whether lack of knowledge that a material is copyrighted is a

defense against copyright infringement;

Fifth, whether good faith is a defense in a criminal prosecution for

violation of the Intellectual Property Code; and

Lastly, whether the Court of Appeals was correct in overturning

Secretary Agra’s finding of probable cause.

The trial court granted respondents’ Motion to Suspend Proceedings

and deferred respondents Dela Peña-Reyes and Manalastas’
arraignment for 60 days in view of the Petition for Review filed
before the Department of Justice.

Rule 116, Section 11 (c) of the Rules of Criminal Procedure allows

the suspension of the accused’s arraignment in certain circumstances

only:

SEC. 11. Suspension of arraignment.–Upon motion by the proper party,

the arraignment shall be suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental

condition which effectively renders him unable to fully
understand the charge against him and to plead intelligently
thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such
purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is

pending at either the Department of Justice, or the Office of the
President; provided, that the period of suspension shall not
exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (12a) (Emphasis supplied)

In Samson v. Daway,39 this court acknowledged the applicability of

Rule 116, Section (c) in a criminal prosecution for infringement under
the Intellectual Property Code. However, this court emphasized the
limits of the order of deferment under the Rule:

While the pendency of a petition for review is a ground for suspension

of the arraignment, the . . . provision limits the deferment of the
arraignment to a period of 60 days reckoned from the filing of the
petition with the reviewing office. It follows, therefore, that after the
expiration of said period, the trial court is bound to arraign the
accused or to deny the motion to defer arraignment.40

We clarify that the suspension of the arraignment should always be

within the limits allowed by law. In Crespo v. Judge Mogul, 41 this
court outlined the effects of filing an information before the trial
court, which includes initiating a criminal action and giving this court
"authority to hear and determine the case":42
The preliminary investigation conducted by the fiscal for the purpose
of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of
said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court
must be secured. After such reinvestigation the finding and
recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should
be filed in court or not, once the case had already been brought to
Court whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of the Court,
the only qualification is that the action of the Court must not impair
the substantial rights of the accused or the right of the People to due
process of law.

Whether the accused had been arraigned or not and whether it was
due to a reinvestigation by the fiscal or a review by the Secretary of
Justice whereby a motion to dismiss was submitted to the Court, the
Court in the exercise of its discretion may grant the motion or deny it
and require that the trial on the merits proceed for the proper
determination of the case.

However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice
will there not be a vacuum in the prosecution? A state prosecutor to
handle the case cannot possibly be designated by the Secretary of
Justice who does not believe that there is a basis for prosecution nor
can the fiscal be expected to handle the prosecution of the case
thereby defying the superior order of the Secretary of Justice. The
answer is simple. The role of the fiscal or prosecutor as We all know
is to see that justice is done and not necessarily to secure the
conviction of the person accused before the Courts. Thus, in spite of
his opinion to the contrary, it is the duty of the fiscal to proceed with
the presentation of evidence of the prosecution to the Court to enable
the Court to arrive at its own independent judgment as to whether the
accused should be convicted or acquitted. The fiscal should not shirk
from the responsibility of appearing for the People of the Philippines
even under such circumstances much less should he abandon the
prosecution of the case leaving it to the hands of a private prosecutor
for then the entire proceedings will be null and void. The least that
the fiscal should do is to continue to appear for the prosecution
although he may turn over the presentation of the evidence to the
private prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction
and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The
Court is the best and sole judge on what to do with the case before it.
The determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of
the investigation.43 (Emphasis supplied, citations omitted)

The doctrine in Crespo was reiterated in Mayor Balindong v. Court of

Appeals,44 where this court reminded the Department of Justice
Secretary to refrain from entertaining petitions for review when the
case is already pending with this court:

[I]n order to avoid a situation where the opinion of the Secretary of

Justice who reviewed the action of the fiscal may be disregarded by
the trial court, the Secretary of Justice should, as far as practicable,
refrain from entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has already
been filed in the Court. The matter should be left entirely for the
determination of the Court.45

The trial court should have proceeded with respondents Dela Peña-
Reyes and Manalastas’ arraignment after the 60-day period from the
filing of the Petition for Review before the Department of Justice on
March 8, 2005. It was only on September 13, 2010 that the temporary
restraining order was issued by the Court of Appeals. The trial court
erred when it did not act on the criminal case during the interim
period. It had full control and direction of the case. As Judge Mogul
reasoned in denying the motion to dismiss in Crespo, failure to
proceed with the arraignment "disregards the requirements of due
process [and] erodes the Court’s independence and integrity."46
II

According to ABS-CBN, the Court of Appeals erred in finding that: a

motion for reconsideration was not necessary before a petition for
certiorari could be filed; the Department of Justice Secretary
committed errors of jurisdiction since the Agra Resolution was issued
within its authority and in accordance with settled laws and
jurisprudence; and respondents were not liable for copyright
infringement.

In its assailed Decision, the Court of Appeals found that respondents

committed a procedural error when they failed to file a motion for
reconsideration before filing the Petition for Certiorari. However, the
Court of Appeals held that a motion for reconsideration was
unnecessary since the Agra Resolution was a patent nullity and it
would have been useless under the circumstances: Given that a
reading of the assailed Resolution and the instant records readily
reveals errors of jurisdiction on the part of respondent Secretary,
direct judicial recourse is warranted under the circumstances. Aside
from the fact that said Resolution is a patent nullity having been
issued in grave abuse of discretion amounting to lack or excess of
jurisdiction, the filing of a motion for reconsideration is evidently
useless on account of the fact that the issues and arguments before
this Court have already been duly raised and accordingly delved into
by respondent Secretary in his disposition of the petition a
quo.47 (Emphasis in the original)

In Elma v. Jacobi,48 this court ruled that a petition for certiorari under
Rule 65 of the Rules of Court is proper when assailing adverse
resolutions of the Department of Justice stemming from the
determination of probable cause.49 However, grave abuse of discretion
must be alleged.50

In Sanrio Company Limited v. Lim,51 this court stressed the

prosecutor’s role in determining probable cause. Judicial review will
only lie when it is shown that the prosecutor acted with grave abuse
of discretion amounting to lack or excess of jurisdiction:

A prosecutor alone determines the sufficiency of evidence that will

establish probable cause justifying the filing of a criminal information
against the respondent. By way of exception, however, judicial review
is allowed where respondent has clearly established that the
prosecutor committed grave abuse of discretion. Otherwise stated,
such review is appropriate only when the prosecutor has exercised his
discretion in an arbitrary, capricious, whimsical or despotic manner
by reason of passion or personal hostility, patent and gross enough to
amount to an evasion of a positive duty or virtual refusal to perform a
duty enjoined by law.52 (Citations omitted)

Grave abuse of discretion refers to:

such capricious and whimsical exercise of judgment as is equivalent to

lack of jurisdiction. The abuse of discretion must be grave as where
the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined by or to act at all in contemplation of law.53

Resorting to certiorari requires that there be there be "no appeal, or

any plain, speedy, and adequate remedy in the ordinary course of
law[,]"54 such as a motion for reconsideration. Generally, "a motion
for reconsideration is a condition sine qua non before a petition for
certiorari may lie, its purpose being to grant an opportunity for the
[tribunal or officer] to correct any error attributed to it by a re-
examination of the legal and factual circumstances of the
case."55 However, exceptions to the rule exist:

(a) where the order is a patent nullity, as where the Court a quo had
no jurisdiction; (b) where the questions raised in the certiorari
proceeding have been duly raised and passed upon by the lower court,
or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of the action is
perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was deprived
of due process and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is urgent and the granting
of such relief by the trial Court is improbable; (g) where the
proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings was ex parte or in which the petitioner had
no opportunity to object; and (i) where the issue raised is one purely
of law or where public interest is involved.56 (Emphasis in the
original, citations omitted)
As argued by respondents, "[a] second motion for reconsideration
would have been useless and futile since the D[epartment] [of]
J[ustice] had already passed upon the same issues twice." 57 Equally
pressing under the circumstances was the need to resolve the matter,
as the Information’s filing would lead to respondents’ imminent
arrest.58

Moreover, Department of Justice Department Circular No. 70 dated

July 3, 2000, or the 2000 NPS Rules on Appeal, provides that no
second motion for reconsideration of the Department of Justice
Secretary’s resolution shall be entertained:

SECTION 13. Motion for reconsideration. The aggrieved party may file
a motion for reconsideration within a non-extendible period of ten
(10) days from receipt of the resolution on appeal, furnishing the
adverse party and the Prosecution Office concerned with copies
thereof and submitting proof of such service. No second or further
motion for reconsideration shall be entertained.

The Agra Resolution was the result of respondents’ Motion for

Reconsideration assailing the Gonzalez Resolution. To file a motion
for reconsideration of the Agra Resolution would be superfluous.
Respondents were, therefore, correct in filing the Petition for
Certiorari of the Agra Resolution before the Court of Appeals.

III

The Court of Appeals ruled that Secretary Agra committed errors of

jurisdiction, which then required the grant of the writ of certiorari:

So viewed, by ordering the filing of information without proof that

probable cause exists to charge petitioners with a crime, respondent
Secretary clearly committed an error of jurisdiction thus warranting
the issuance of the writ of certiorari. Surely, probable cause cannot be
had when the very provisions of the statute exculpates criminal
liability in cases classified as fair use of copyrighted materials. The
fact that they admittedly used the Reuters live video feed is not, as a
matter of course, tantamount to copyright infringement that would
justify the filing of an information against the petitioners.59

Error of jurisdiction must be distinguished from error of judgment:

A line must be drawn between errors of judgment and errors of
jurisdiction. An error of judgment is one which the court may commit
in the exercise of its jurisdiction. An error of jurisdiction renders an
order or judgment void or voidable. Errors of jurisdiction are
reviewable on certiorari; errors of judgment, only by appeal.60

In People v. Hon. Sandiganbayan61:

An error of judgment is one which the court may commit in the

exercise of its jurisdiction. An error of jurisdictionis one where the act
complained of was issued by the court without or in excess of
jurisdiction, or with grave abuse of discretion, which is tantamount to
lack or in excess of jurisdiction and which error is correctible only by
the extraordinary writ of certiorari. Certiorari will not be issued to
cure errors of the trial court in its appreciation of the evidence of the
parties, or its conclusions anchored on the said findings and its
conclusions of law.62 (Emphasis supplied)

This court has adopted a deferential attitude towards review of the

executive’s finding of probable cause.63 This is based "not only upon
the respect for the investigatory and [prosecutorial] powers granted
by the Constitution to the executive department but upon practicality
as well."64 Review of the Department of Justice Secretary’s decision or
resolution will be allowed only when grave abuse of discretion is
alleged:

The full discretionary authority to determine probable cause in a

preliminary investigation to ascertain sufficient ground for the filing
of information rests with the executive branch. Hence, judicial review
of the resolution of the Secretary of Justice is limited to a
determination whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction. Courts cannot substitute
the executive branch’s judgment.

....

It is only where the decision of the Justice Secretary is tainted with

grave abuse of discretion amounting to lack or excess of jurisdiction
that the Court of Appeals may take cognizance of the case in a petition
for certiorari under Rule 65 of the Revised Rules of Civil Procedure.
The Court of Appeals decision may then be appealed to this Court by
way of a petition for review on certiorari.65 (Emphasis supplied,
citations omitted)
In this case, it must be shown that Secretary Agra exceeded his
authority when he reversed the findings of Secretary Gonzalez. This
court must determine whether there is probable cause to file an
information for copyright infringement under the Intellectual
Property Code.

IV

Probable cause pertains to "such facts as are sufficient to engender a

well-founded belief that a crime has been committed and that
respondent is probably guilty thereof."66 Preliminary investigation is
the inquiry or proceeding to determine whether there is probable
cause.67

In Webb v. De Leon,68 this court ruled that determination of probable

cause during preliminary investigation does not require trial-like
evaluation of evidence since existence of probable cause does not
equate to guilt:

It ought to be emphasized that in determining probable cause, the

average man weighs facts and circumstances without resorting to the
calibrations of our technical rules of evidence of which his knowledge
is nil. Rather, he relies on the calculus of common sense of which all
reasonable men have an abundance.

....

. . . A finding of probable cause merely binds over the suspect to stand

trial. It is not a pronouncement of guilt.69

In Reyes v. Pearlbank Securities, Inc.,70 finding probable cause is not

equivalent to finding with moral certainty that the accused committed
the crime:

A finding of probable cause needs only to rest on evidence showing

that more likely than not a crime has been committed by the suspects.
It need not be based on clear and convincing evidence of guilt, not on
evidence establishing guilt beyond reasonable doubt, and definitely
not on evidence establishing absolute certainty of guilt. In
determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on
common sense.71
During preliminary investigation, a public prosecutor does not
adjudicate on the parties’ rights, obligations, or liabilities.72

In the recent case of Estrada v. Office of the Ombudsman, et al.,73 we

reiterated Webb on the determination of probable cause during
preliminary investigation and traced the history of probable cause as
borrowed from American jurisprudence:

The purpose in determining probable cause is to make sure that the

courts are not clogged with weak cases that will only be dismissed, as
well as to spare a person from the travails of a needless prosecution.

....

. . . In the United States, from where we borrowed the concept of

probable cause, the prevailing definition of probable cause is this:

In dealing with probable cause, however, as the very name implies,

we deal with probabilities. These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard
of proof is accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a

reasonable ground for belief of guilt." McCarthy v. De Armit, 99 Pa. St.
63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161.
And this "means less than evidence which would justify
condemnation" or conviction, as Marshall, C. J., said for the Court
more than a century ago in Locke v. United States, 7 Cranch 339, 348.
Since Marshall’s time, at any rate, it has come to mean more than bare
suspicion: Probable cause exists where "the facts and circumstances
within their [the officers’] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that" an offense has
been or is being committed. Carroll v. United States, 267 U. S. 132,
162.

These long-prevailing standards seek to safeguard citizens from rash

and unreasonable interferences with privacy and from unfounded
charges of crime. They also seek to give fair leeway for enforcing the
law in the community’s protection. Because many situations which
confront officers in the course of executing their duties are more or
less ambiguous, room must be allowed for some mistakes on their
part. But the mistakes must be those of reasonable men, acting on
facts leading sensibly to their conclusions of probability. The rule of
probable cause is a practical, non technical conception affording the
best compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law
enforcement. To allow less would be to leave law-abiding citizens at
the mercy of the officers’ whim or caprice.

In the Philippines, there are four instances in the Revised Rules of

Criminal Procedure where probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer,

to determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for
trial. A preliminary investigation is required before the filing of
a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day
without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine

whether a warrant of arrest or a commitment order, if the
accused has already been arrested, shall be issued and that there
is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113:By a peace officer or a private

person making a warrantless arrest when an offense has just
been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to
be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether

a search warrant shall be issued, and only upon probable cause
in connection with one specific offense to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched
and the things to be seized which may be anywhere in the
Philippines.

In all these instances, the evidence necessary to establish probable

cause is based only on the likelihood, or probability, of guilt.74
Estrada also highlighted that a "[p]reliminary investigation is not part
of the criminal action. It is merely preparatory and may even be
disposed of in certain situations."75

To determine whether there is probable cause that respondents

committed copyright infringement, a review of the elements of the
crime, including the existing facts, is required.

ABS-CBN claims that news footage is subject to copyright and

prohibited use of copyrighted material is punishable under the
Intellectual Property Code. It argues that the new footage is not a
"newsworthy event" but "merely an account of the arrival of Angelo
dela Cruz in the Philippines — the latter being the newsworthy
event":76

To be clear, it is the event itself or the arrival of Angelo dela Cruz

which is not copyrightable because that is the newsworthy event.
However, any footage created from the event itself, in this case the
arrival of Angelo dela Cruz, are intellectual creations which are
copyrightable. Thus, the footage created by ABS-CBN during the
arrival of Angelo dela Cruz, which includes the statements of Dindo
Amparo, are copyrightable and protected by the laws on copyright.77

On the other hand, respondents argue that ABS-CBN’s news footage of

Angelo dela Cruz’s arrival is not copyrightable or subject to
protection:

Certainly, the arrival of Angelo [d]ela Cruz, which aroused public

attention and the consciousness of the Filipino people with regard to
their countrymen, OFWs working in foreign countries and how the
Philippine government responds to the issues concerning them, is
"news". There is no ingenuity or inventiveness added in the said news
footage. The video footage of this "news" is not copyrightable by any
legal standard as facts of everyday life depicted in the news and items
of press information is part of the public domain.78 (Emphasis in the
original)

The news footage is copyrightable.

The Intellectual Property Code is clear about the rights afforded to

authors of various kinds of work. Under the Code, "works are
protected by the sole fact of their creation, irrespective of their mode
or form of expression, as well as of their content, quality and
purpose."79 These include "[a]udiovisual works and cinematographic
works and works produced by a process analogous to cinematography
or any process for making audiovisual recordings."80

Contrary to the old copyright law,81 the Intellectual Property Code

does not require registration of the work to fully recover in an
infringement suit. Nevertheless, both copyright laws provide that
copyright for a work is acquired by an intellectual creator from the
moment of creation.82

It is true that under Section 175 of the Intellectual Property Code,

"news of the day and other miscellaneous facts having the character
of mere items of press information" are considered unprotected
subject matter.83 However, the Code does not state that expression of
the news of the day, particularly when it underwent a creative
process, is not entitled to protection.

An idea or event must be distinguished from the expression of that

idea or event. An idea has been likened to a ghost in that it "must be
spoken to a little before it will explain itself."84 It is a concept that has
eluded exact legal definition.85 To get a better grasp of the
idea/expression dichotomy, the etymology of the term "idea" is
traced:

The word "idea" is derived from a Greek term, meaning "a form, the
look or appearance of a thing as opposed to its reality, from idein, to
see." In the Timaeus, Plato saw ideas as eternal paradigms,
independent objects to which the divine demiurge looks as patterns in
forming the world. This was later modified to the religious conception
of ideas as the thoughts of God. "It is not a very long step to extend
the term ‘idea’ to cover patterns, blueprints, or plans in anyone's
mind, not only in God’s." The word entered the French and English
vernacular in the 1600s and possessed two meanings. The first was
the Platonic meaning of a perfect exemplar or paradigm. The second,
which probably has its origin with Descartes, is of a mental concept or
image or, more broadly, any object of the mind when it is active.
Objects of thought may exist independently. The sun exists (probably)
before and after you think of it. But it is also possible to think of
things that have never existed, such as a unicorn or Pegasus. John
Locke defined ideas very comprehensively, to include: all objects of
the mind. Language was a way of translating the invisible, hidden
ideas that make up a person’s thoughts into the external, perceptible
world of articulate sounds and visible written symbols that others can
understand.86 (Citations omitted) There is no one legal definition of
"idea" in this jurisdiction. The term "idea" is mentioned only once in
the Intellectual Property Code.87 In Joaquin, Jr. v. Drilon,88 a television
format (i.e., a dating show format) is not copyrightable under Section
2 of Presidential Decree No. 49;89 it is a mere concept:

P.D. No. 49, §2, in enumerating what are subject to copyright, refers
to finished works and not to concepts. The copyright does not extend
to an idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work. Thus, the new
INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:

SEC. 175. Unprotected Subject Matter.—Notwithstanding the

provisions of Sections 172 and 173, no protection shall extend, under
this law, to any idea, procedure, system, method or operation,
concept, principle, discovery or mere data as such, even if they are
expressed, explained, illustrated or embodied in a work; news of the
day and other miscellaneous facts having the character of mere items
of press information; or any official text of a legislative,
administrative or legal nature, as well as any official translation
thereof.

What then is the subject matter of petitioners’ copyright? This Court

is of the opinion that petitioner BJPI’s copyright covers audio-visual
recordings of each episode of Rhoda and Me, as falling within the
class of works mentioned in P.D. 49, §2(M),to wit:

Cinematographic works and works produced by a process analogous to

cinematography or any process for making audio-visual recordings;

The copyright does not extend to the general concept or format of its
dating game show. Accordingly, by the very nature of the subject of
petitioner BJPI’s copyright, the investigating prosecutor should have
the opportunity to compare the videotapes of the two shows.

Mere description by words of the general format of the two dating

game shows is insufficient; the presentation of the master videotape
in evidence was indispensable to the determination of the existence of
probable cause. As aptly observed by respondent Secretary of Justice:
A television show includes more than mere words can describe
because it involves a whole spectrum of visuals and effects, video and
audio, such that no similarity or dissimilarity may be found by merely
describing the general copyright/format of both dating game
shows.90 (Emphasis supplied, citations omitted)

Ideas can be either abstract or concrete.91 It is the concrete ideas that

are generally referred to as expression:

The words "abstract" and "concrete" arise in many cases dealing with
the idea/expression distinction. The Nichols court, for example, found
that the defendant’s film did not infringe the plaintiff’s play because it
was "too generalized an abstraction from what plaintiff wrote . . .
only a part of her ideas." In Eichel v. Marcin, the court said that
authors may exploit facts, experiences, field of thought, and general
ideas found in another’s work, "provided they do not substantially
copy a concrete form, in which the circumstances and ideas have been
developed, arranged, and put into shape." Judge Hand, in National
Comics Publications, Inc. v. Fawcett Publications, Inc. said that "no
one infringes, unless he descends so far into what is concrete as to
invade. . . ‘expression.’"

These cases seem to be distinguishing "abstract" ideas from

"concrete" tangible embodiments of these abstractions that may be
termed expression. However, if the concrete form of a work means
more than the literal expression contained within it, it is difficult to
determine what is meant by "concrete." Webster's New Twentieth
Century Dictionary of the English Language provides several meanings
for the word concrete. These include: "having a material, perceptible
existence; of, belonging to, or characterized by things or events that
can be perceived by the senses; real; actual;" and "referring to a
particular; specific, not general or abstract."92

In Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated,93 this

court, citing the American case of Baker v. Selden, distinguished
copyright from patents and illustrated how an idea or concept is
different from the expression of that idea:

In the oft-cited case of Baker vs. Selden, the United States Supreme
Court held that only the expression of an idea is protected by
copyright, not the idea itself. In that case, the plaintiff held the
copyright of a book which expounded on a new accounting system he
had developed. The publication illustrated blank forms of ledgers
utilized in such a system. The defendant reproduced forms similar to
those illustrated in the plaintiff’s copyrighted book. The US Supreme
Court ruled that:

"There is no doubt that a work on the subject of book-keeping, though

only explanatory of well known systems, may be the subject of a
copyright; but, then, it is claimed only as a book. x x x But there is a
clear distinction between the books, as such, and the art, which it is,
intended to illustrate. The mere statement of the proposition is so
evident that it requires hardly any argument to support it. The same
distinction may be predicated of every other art as well as that of
bookkeeping.

A treatise on the composition and use of medicines, be they old or

new; on the construction and use of ploughs or watches or churns; or
on the mixture and application of colors for painting or dyeing; or on
the mode of drawing lines to produce the effect of perspective, would
be the subject of copyright; but no one would contend that the
copyright of the treatise would give the exclusive right to the art or
manufacture described therein. The copyright of the book, if not
pirated from other works, would be valid without regard to the
novelty or want of novelty of its subject matter. The novelty of the art
or thing described or explained has nothing to do with the validity of
the copyright. To give to the author of the book an exclusive property
in the art described therein, when no examination of its novelty has
ever been officially made, would be a surprise and a fraud upon the
public. That is the province of letters patent, not of copyright. The
claim to an invention of discovery of an art or manufacture must be
subjected to the examination of the Patent Office before an exclusive
right therein can be obtained; and a patent from the government can
only secure it.

The difference between the two things, letters patent and copyright,
may be illustrated by reference to the subjects just enumerated. Take
the case of medicines. Certain mixtures are found to be of great value
in the healing art. If the discoverer writes and publishes a book on the
subject (as regular physicians generally do), he gains no exclusive
right to the manufacture and sale of the medicine; he gives that to the
public. If he desires to acquire such exclusive right, he must obtain a
patent for the mixture as a new art, manufacture or composition of
matter. He may copyright his book, if he pleases; but that only secures
to him the exclusive right of printing and publishing his book. So of all
other inventions or discoveries.
The copyright of a book on perspective, no matter how many drawings
and illustrations it may contain, gives no exclusive right to the modes
of drawing described, though they may never have been known or
used before. By publishing the book without getting a patent for the
art, the latter is given to the public.

....

Now, whilst no one has a right to print or publish his book, or any
material part thereof, as a book intended to convey instruction in the
art, any person may practice and use the art itself which he has
described and illustrated therein. The use of the art is a totally
different thing from a publication of the book explaining it. The
copyright of a book on bookkeeping cannot secure the exclusive right
to make, sell and use account books prepared upon the plan set forth
in such book. Whether the art might or might not have been patented,
is a question, which is not before us. It was not patented, and is open
and free to the use of the public. And, of course, in using the art, the
ruled lines and headings of accounts must necessarily be used as
incident to it.

The plausibility of the claim put forward by the complainant in this

case arises from a confusion of ideas produced by the peculiar nature
of the art described in the books, which have been made the subject of
copyright. In describing the art, the illustrations and diagrams
employed happened to correspond more closely than usual with the
actual work performed by the operator who uses the art. x x x The
description of the art in a book, though entitled to the benefit of
copyright, lays no foundation for an exclusive claim to the art itself.
The object of the one is explanation; the object of the other is use. The
former may be secured by copyright. The latter can only be secured, if
it can be secured at all, by letters patent."94 (Emphasis supplied)

News or the event itself is not copyrightable. However, an event can

be captured and presented in a specific medium. As recognized by this
court in Joaquin, television "involves a whole spectrum of visuals and
effects, video and audio."95 News coverage in television involves
framing shots, using images, graphics, and sound effects.96 It involves
creative process and originality. Television news footage is an
expression of the news.

In the United States, a line of cases dwelt on the possibility of

television newscasts to be copyrighted.97 Most of these cases focused
on private individuals’ sale or resale of tapes of news broadcasts.
Conflicting decisions were rendered by its courts. Noteworthy,
however, is the District Court’s pronouncement in Pacific & Southern
Co. v. Duncan,98 which involves a News Monitoring Service’s
videotaping and sale of WXIA-TV’s news broadcasts:

It is axiomatic that copyright protection does not extend to news

"events" or the facts or ideas which are the subject of news reports.
Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir.
1981); Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558
F.2d 91, 95 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54
L.Ed.2d 759 (1978). But it is equally well-settled that copyright
protection does extend to the reports themselves, as distinguished
from the substance of the information contained in the reports.
Wainwright, 558 F.2d at 95; International News Service v. Associated
Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); see Chicago
Record-Herald Co. v. Tribune Assn., 275 F. 797 (7th Cir.1921); 1
Nimmer on Copyright § 2.11[B] (1983). Copyright protects the manner
of expression of news reports, "the particular form or collocation of
words in which the writer has communicated it." International News
Service, 248 U.S. at 234, 39 S.Ct. at 70. Such protection extends to
electronic news reports as well as written reports. See17 U.S.C. §
102(a) (5), (6), and (7); see also Iowa State University Research
Foundations, Inc. v. American Broadcasting Cos., 621 F.2d 57, 61 (2d
Cir. 1980).99 (Emphasis supplied)

The idea/expression dichotomy has long been subject to debate in the

field of copyright law. Abolishing the dichotomy has been proposed, in
that non-protectibility of ideas should be re-examined, if not stricken,
from decisions and the law:

If the underlying purpose of the copyright law is the dual one

expressed by Lord Mansfield, the only excuse for the continuance of
the idea-expression test as a judicial standard for determining
protectibility would be that it was or could be a truly useful method of
determining the proper balance between the creator’s right to profit
from his work and the public's right that the "progress of the arts not
be retarded."

. . . [A]s used in the present-day context[,] the dichotomy has little or

no relationship to the policy which it should effectuate. Indeed, all too
often the sweeping language of the courts regarding the non-
protectibility of ideas gives the impression that this is of itself a
policy of the law, instead of merely a clumsy and outdated tool to
achieve a much more basic end.100

The idea/expression dichotomy is a complex matter if one is trying to

determine whether a certain material is a copy of another. 101 This
dichotomy would be more relevant in determining, for instance,
whether a stage play was an infringement of an author’s book
involving the same characters and setting. In this case, however,
respondents admitted that the material under review — which is the
subject of the controversy — is an exact copy of the original.
Respondents did not subject ABS-CBN’s footage to any editing of their
own. The news footage did not undergo any transformation where
there is a need to track elements of the original.

Having established the protectible nature of news footage, we now

discuss the concomitant rights accorded to authors. The authors of a
work are granted several rights in relation to it, including copyright
or economic rights:

SECTION 177. Copyright or Economic Rights. — Subject to the

provisions of Chapter VIII, copyright or economic rights shall consist
of the exclusive right to carry out, authorize or prevent the following
acts:

177.1. Reproduction of the work or substantial portion of the

work;

177.2. Dramatization, translation, adaptation, abridgment,

arrangement or other transformation of the work;

177.3. The first public distribution of the original and each copy
of the work by sale or other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or

cinematographic work, a work embodied in a sound recording, a
computer program, a compilation of data and other materials or
a musical work in graphic form, irrespective of the ownership of
the original or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

 177.7. Other communication to the public of the work.(Sec. 5, P.
D. No. 49a) (Emphasis supplied)

Under Section 211 of the Intellectual Property Code, broadcasting

organizations are granted a more specific set of rights called related
or neighboring rights:

SECTION 211. Scope of Right. — Subject to the provisions of Section

212, broadcasting organizations shall enjoy the exclusive right to
carry out, authorize or prevent any of the following acts:

211.1. The rebroadcasting of their broadcasts;

211.2. The recording in any manner, including the making of

films or the use of video tape, of their broadcasts for the
purpose of communication to the public of television broadcasts
of the same; and

211.3. The use of such records for fresh transmissions or for

fresh recording. (Sec. 52, P.D. No. 49) (Emphasis supplied)

Section 212 of the Code provides:

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall
not apply where the acts referred to in those Sections are related to:

212.1. The use by a natural person exclusively for his own

personal purposes;

212.2. Using short excerpts for reporting current events;

212.3. Use solely for the purpose of teaching or for scientific

research; and

212.4. Fair use of the broadcast subject to the conditions under

Section 185. (Sec. 44, P.D. No. 49a)

The Code defines what broadcasting is and who broadcasting

organizations include:
 202.7. "Broadcasting" means the transmission by wireless
means for the public reception of sounds or of images or of
representations thereof; such transmission by satellite is also
"broadcasting" where the means for decrypting are provided to
the public by the broadcasting organization or with its consent;

202.8. "Broadcasting organization" shall include a natural

person or a juridical entity duly authorized to engage in
broadcasting[.]

Developments in technology, including the process of preserving once

ephemeral works and disseminating them, resulted in the need to
provide a new kind of protection as distinguished from
copyright.102 The designation "neighboring rights" was abbreviated
from the phrase "rights neighboring to copyright."103 Neighboring or
related rights are of equal importance with copyright as established in
the different conventions covering both kinds of rights.104

Several treaties deal with neighboring or related rights of

copyright.105 The most prominent of these is the "International
Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations" (Rome Convention).106

The Rome Convention protects the rights of broadcasting

organizations in relation to their broadcasts. Article XIII of the Rome
Convention enumerates the minimum rights accorded to broadcasting
organizations:

Article 13

Minimum Rights for Broadcasting Organizations

Broadcasting organisations shall enjoy the right to authorize or

prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;

(c) the reproduction:

(i) of fixations, made without their consent, of their

broadcasts;
 (ii) of fixations, made in accordance with the provisions of
Article 15, of their broadcasts, if the reproduction is made
for purposes different from those referred to in those
provisions;

(d) the communication to the public of their television

broadcasts if such communication is made in places accessible
to the public against payment of an entrance fee; it shall be a
matter for the domestic law of the State where protection of this
right is claimed to determine the conditions under which it may
be exercised.

With regard to the neighboring rights of a broadcasting organization

in this jurisdiction, this court has discussed the difference between
broadcasting and rebroadcasting:

Section 202.7 of the IP Code defines broadcasting as "the transmission

by wireless means for the public reception of sounds or of images or
of representations thereof; such transmission by satellite is also
‘broadcasting’ where the means for decrypting are provided to the
public by the broadcasting organization or with its consent."

On the other hand, rebroadcasting as defined in Article 3(g) of the

International Convention for the Protection of Performers, Producers
of Phonograms and Broadcasting Organizations, otherwise known as
the 1961 Rome Convention, of which the Republic of the Philippines is
a signatory, is "the simultaneous broadcasting by one broadcasting
organization of the broadcast of another broadcasting organization."

....

Under the Rome Convention, rebroadcasting is "the simultaneous

broadcasting by one broadcasting organization of the broadcast of
another broadcasting organization." The Working Paper prepared by
the Secretariat of the Standing Committee on Copyright and Related
Rights defines broadcasting organizations as "entities that take the
financial and editorial responsibility for the selection and
arrangement of, and investment in, the transmitted
content." 107 (Emphasis in the original, citations omitted)

Broadcasting organizations are entitled to several rights and to the

protection of these rights under the Intellectual Property Code.
Respondents’ argument that the subject news footage is not
copyrightable is erroneous. The Court of Appeals, in its assailed
Decision, correctly recognized the existence of ABS-CBN’s copyright
over the news footage:

Surely, private respondent has a copyright of its news coverage.

Seemingly, for airing said video feed, petitioner GMA is liable under
the provisions of the Intellectual Property Code, which was enacted
purposely to protect copyright owners from infringement.108

News as expressed in a video footage is entitled to copyright

protection. Broadcasting organizations have not only copyright on but
also neighboring rights over their broadcasts. Copyrightability of a
work is different from fair use of a work for purposes of news
reporting.

VI

ABS-CBN assails the Court of Appeals’ ruling that the footage shown
by GMA-7 falls under the scope of Section 212.2 and 212.4 of the
Intellectual Property Code:

The evidence on record, as well as the discussions above, show that

the footage used by[respondents] could hardlybe characterized as a
short excerpt, as it was aired over one and a half minutes.

Furthermore, the footage used does not fall under the contemplation
of Section 212.2 of the Intellectual Property Code. A plain reading of
the provision would reveal that copyrighted material referred to in
Section 212 are short portions of an artist’s performance under
Section 203, or a producer’s sound recordings under Sections 208 and
209. Section 212 does not refer to actual use of video footage of
another as its own.

The Angelo dela Cruz footage does not fall under the rule on Section
212.4 of the Intellectual Property Code on fair use of the broadcast.

....

In determining fair use, several factors are considered, including the

nature of the copyrighted work, and the amount and substantiality of
the person used in relation to the copyrighted work as a whole.
In the business of television news reporting, the nature of the
copyrighted work or the video footages, are such that, footage
created, must be a novelty to be a good report. Thus, when the . . .
Angelo dela Cruz footage was used by [respondents], the novelty of
the footage was clearly affected.

Moreover, given that a substantial portion of the Angelo dela Cruz

footage was utilized by GMA-7 for its own, its use can hardly be
classified as fair use.

Hence, [respondents] could not be considered as having used the

Angelo dela Cruz [footage] following the provisions on fair use.

It is also worthy to note that the Honorable Court of Appeals seem to

contradict itself when it relied on the provisions of fair use in its
assailed rulings considering that it found that the Angelo dela Cruz
footage is not copyrightable, given that the fair use presupposes an
existing copyright. Thus, it is apparent that the findings of the
Honorable Court of Appeals are erroneous and based on wrong
assumptions.109 (Underscoring in the original)

On the other hand, respondents counter that GMA-7’s use of ABS-

CBN’s news footage falls under fair use as defined in the Intellectual
Property Code. Respondents, citing the Court of Appeals Decision,
argue that a strong statutory defense negates any finding of probable
cause under the same statute.110 The Intellectual Property Code
provides that fair use negates infringement.

Respondents point out that upon seeing ABS-CBN’s reporter Dindo

Amparo on the footage, GMA-7 immediately shut off the broadcast.
Only five (5) seconds passed before the footage was cut. They argue
that this shows that GMA-7 had no prior knowledge of ABS-CBN’s
ownership of the footage or was notified of it. They claim that the
Angelo dela Cruz footage is considered a short excerpt of an event’s
"news" footage and is covered by fair use.111

Copyright protection is not absolute.112 The Intellectual Property Code

provides the limitations on copyright:

CHAPTER VIII
LIMITATIONS ON COPYRIGHT
Section 184. Limitations on Copyright. - 184.1. Notwithstanding the
provisions of Chapter V, the following acts shall not constitute
infringement of copyright:

....

184.2. The provisions of this section shall be interpreted in such a way

as to allow the work to be used in a manner which does not conflict
with the normal exploitation of the work and does not unreasonably
prejudice the right holder's legitimate interests.

....

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall
not apply where the acts referred to in those Sections are related to:

....

212.2. Using short excerpts for reporting current events;

....

212.4. Fair use of the broadcast subject to the conditions under

Section 185.(Sec. 44, P.D. No. 49a) (Emphasis supplied)

The determination of what constitutes fair use depends on several

factors. Section 185 of the Intellectual Property Code states:

SECTION 185. Fair Use of a Copyrighted Work. —

185.1. The fair use of a copyrighted work for criticism, comment, news
reporting, teaching including multiple copies for classroom use,
scholarship, research, and similar purposes is not an infringement of
copyright. . . . In determining whether the use made of a work in any
particular case is fair use, the factors to be considered shall include:

a. The purpose and character of the use, including whether such

use is of a commercial nature or is for non-profit educational
purposes;

b. The nature of the copyrighted work;

 c. The amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and

d. The effect of the use upon the potential market for or value of
the copyrighted work. Respondents allege that the news footage
was only five (5) seconds long, thus falling under fair use. ABS-
CBN belies this contention and argues that the footage aired for
two (2) minutes and 40 seconds.113 According to the Court of
Appeals, the parties admitted that only five (5) seconds of the
news footage was broadcasted by GMA-7.114

This court defined fair use as "aprivilege to use the copyrighted

material in a reasonable manner without the consent of the copyright
owner or as copying the theme or ideas rather than their
expression."115 Fair use is an exception to the copyright owner’s
monopoly of the use of the work to avoid stifling "the very creativity
which that law is designed to foster."116

Determining fair use requires application of the four-factor test.

Section 185 of the Intellectual Property Code lists four (4) factors to
determine if there was fair use of a copyrighted work:

a. The purpose and character of the use, including whether such

use is of a commercial nature or is for non-profit educational
purposes;

b. The nature of the copyrighted work;

c. The amount and substantiality of the portion used in relation

to the copyrighted work as a whole; and

d. The effect of the use upon the potential market for or value of
the copyrighted work.

First, the purpose and character of the use of the copyrighted material
must fall under those listed in Section 185, thus: "criticism, comment,
news reporting, teaching including multiple copies for classroom use,
scholarship, research, and similar purposes."117 The purpose and
character requirement is important in view of copyright’s goal to
promote creativity and encourage creation of works. Hence,
commercial use of the copyrighted work can be weighed against fair
use.
The "transformative test" is generally used in reviewing the purpose
and character of the usage of the copyrighted work.118 This court must
look into whether the copy of the work adds "new expression,
meaning or message" to transform it into something else. 119 "Meta-
use" can also occur without necessarily transforming the copyrighted
work used.120

Second, the nature of the copyrighted work is significant in deciding

whether its use was fair. If the nature of the work is more factual
than creative, then fair use will be weighed in favor of the user.

Third, the amount and substantiality of the portion used is important

to determine whether usage falls under fair use. An exact
reproduction of a copyrighted work, compared to a small portion of it,
can result in the conclusion that its use is not fair. There may also be
cases where, though the entirety of the copyrighted work is used
without consent, its purpose determines that the usage is still
fair.121 For example, a parody using a substantial amount of
copyrighted work may be permissible as fair use as opposed to a copy
of a work produced purely for economic gain. Lastly, the effect of the
use on the copyrighted work’s market is also weighed for or against
the user. If this court finds that the use had or will have a negative
impact on the copyrighted work’s market, then the use is deemed
unfair.

The structure and nature of broadcasting as a business requires

assigned values for each second of broadcast or airtime. In most cases,
broadcasting organizations generate revenue through sale of time or
timeslots to advertisers, which, in turn, is based on market
share:122 Once a news broadcast has been transmitted, the broadcast
becomes relatively worthless to the station. In the case of the aerial
broadcasters, advertising sales generate most of the profits derived
from news reports. Advertising rates are, in turn, governed by market
share. Market share is determined by the number of people watching
a show at any particular time, relative to total viewers at that time.
News is by nature time-limited, and so re-broadcasts are generally of
little worth because they draw few viewers. Newscasts compete for
market share by presenting their news in an appealing format that
will capture a loyal audience. Hence, the primary reason for
copyrighting newscasts by broadcasters would seem to be to prevent
competing stations from rebroadcasting current news from the station
with the best coverage of a particular news item, thus
misappropriating a portion of the market share.
Of course, in the real world there are exceptions to this perfect
economic view. However, there are also many caveats with these
exceptions. A common exception is that some stations rebroadcast the
news of others. The caveat is that generally, the two stations are not
competing for market share. CNN, for example, often makes news
stories available to local broadcasters. First, the local broadcaster is
often not affiliated with a network (hence its need for more
comprehensive programming), confining any possible competition to a
small geographical area. Second, the local broadcaster is not in
competition with CNN. Individuals who do not have cable TV (or a
satellite dish with decoder) cannot receive CNN; therefore there is no
competition. . . . Third, CNN sells the right of rebroadcast to the local
stations. Ted Turner, owner of CNN, does not have First Amendment
freedom of access argument foremost on his mind. (Else he would give
everyone free cable TV so everyone could get CNN.) He is in the
business for a profit. Giving away resources does not a profit
make.123 (Emphasis supplied)

The high value afforded to limited time periods is also seen in other
media. In social media site Instagram, users are allowed to post up to
only 15 seconds of video.124 In short-video sharing website
Vine,125 users are allowed a shorter period of six (6) seconds per post.
The mobile application 1 Second Everyday takes it further by
capturing and stitching one (1) second of video footage taken daily
over a span of a certain period.126

Whether the alleged five-second footage may be considered fair use is

a matter of defense. We emphasize that the case involves
determination of probable cause at the preliminary investigation
stage. Raising the defense of fair use does not automatically mean that
no infringement was committed. The investigating prosecutor has full
discretion to evaluate the facts, allegations, and evidence during
preliminary investigation. Defenses raised during preliminary
investigation are subject to further proof and evaluation before the
trial court. Given the insufficiency of available evidence,
determination of whether the Angelo dela Cruz footage is subject to
fair use is better left to the trial court where the proceedings are
currently pending. GMA-7’s rebroadcast of ABS-CBN’s news footage
without the latter’s consent is not an issue. The mere act of
rebroadcasting without authority from the owner of the broadcast
gives rise to the probability that a crime was committed under the
Intellectual Property Code.
VII

Respondents cannot invoke the defense of good faith to argue that no

probable cause exists.

Respondents argue that copyright infringement is malum in se, in that

"[c]opying alone is not what is being prohibited, but its injurious
effect which consists in the lifting from the copyright owners’ film or
materials, that were the result of the latter’s creativity, work and
productions and without authority, reproduced, sold and circulated
for commercial use to the detriment of the latter."127

Infringement under the Intellectual Property Code is malum

prohibitum. The Intellectual Property Code is a special law. Copyright
is a statutory creation:

Copyright, in the strict sense of the term, is purely a statutory right. It

is a new or independent right granted by the statute, and not simply a
pre-existing right regulated by the statute. Being a statutory grant,
the rights are only such as the statute confers, and may be obtained
and enjoyed only with respect to the subjects and by the persons, and
on terms and conditions specified in the statute.128

The general rule is that acts punished under a special law are malum
prohibitum.129 "An act which is declared malum prohibitum, malice or
criminal intent is completely immaterial."130

In contrast, crimes mala in seconcern inherently immoral acts:

Not every criminal act, however, involves moral turpitude. It is for

this reason that "as to what crime involves moral turpitude, is for the
Supreme Court to determine". In resolving the foregoing question, the
Court is guided by one of the general rules that crimes mala in se
involve moral turpitude, while crimes mala prohibita do not, the
rationale of which was set forth in "Zari v. Flores," to wit:

It (moral turpitude) implies something immoral in itself, regardless of

the fact that it is punishable by law or not. It must not be merely mala
prohibita, but the act itself must be inherently immoral. The doing of
the act itself, and not its prohibition by statute fixes the moral
turpitude. Moral turpitude does not, however, include such acts as are
not of themselves immoral but whose illegality lies in their being
positively prohibited. (Emphasis supplied)
[These] guidelines nonetheless proved short of providing a clear cut
solution, for in International Rice Research Institute v. NLRC, the
Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as
malum in se or as malum prohibitum. There are crimes which are
mala in se and yet but rarely involve moral turpitude and there are
crimes which involve moral turpitude and are mala prohibita only. In
the final analysis, whether or not a crime involves moral turpitude is
ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statue.131 (Emphasis in
the original)

"Implicit in the concept of mala in se is that of mens rea."132 Mens

reais defined as "the nonphysical element which, combined with the
act of the accused, makes up the crime charged. Most frequently it is
the criminal intent, or the guilty mind[.]"133

Crimes mala in sepre suppose that the person who did the felonious
act had criminal intent to do so, while crimes mala prohibita do not
require knowledge or criminal intent:

In the case of mala in se it is necessary, to constitute a punishable

offense, for the person doing the act to have knowledge of the nature
of his act and to have a criminal intent; in the case of mala prohibita,
unless such words as "knowingly" and "willfully" are contained in the
statute, neither knowledge nor criminal intent is necessary. In other
words, a person morally quite innocent and with every intention of
being a law abiding citizen becomes a criminal, and liable to criminal
penaltes, if he does an act prohibited by these statutes. 134 (Emphasis
supplied) Hence, "[i]ntent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have
consciously intended to commit a crime; but he did intend to commit
an act, and that act is, by the very nature of things, the crime
itself[.]"135 When an act is prohibited by a special law, it is considered
injurious to public welfare, and the performance of the prohibited act
is the crime itself.136

Volition, or intent to commit the act, is different from criminal intent.

Volition or voluntariness refers to knowledge of the act being done.
On the other hand, criminal intent — which is different from motive,
or the moving power for the commission of the crime137 — refers to
the state of mind beyond voluntariness. It is this intent that is being
punished by crimes mala in se.
Unlike other jurisdictions that require intent for a criminal
prosecution of copyright infringement, the Philippines does not
statutorily support good faith as a defense. Other jurisdictions provide
in their intellectual property codes or relevant laws that mens rea,
whether express or implied, is an element of criminal copyright
infringement.138

In Canada, criminal offenses are categorized under three (3) kinds:

"the full mens rea offence, meaning the accused’s actual or subjective
state of mind has to be proved; strict liability offences where no mens
rea has to be proved but the accused can avoid liability if he can prove
he took all reasonable steps to avoid the particular event; [and]
absolute liability offences where Parliament has made it clear that
guilt follows proof of the prescribed act only."139 Because of the use of
the word "knowingly" in Canada’s Copyright Act, it has been held that
copyright infringement is a full mens rea offense.140

In the United States, willful intent is required for criminal copyright

infringement.141 Before the passage of the No Electronic Theft Act,
"civil copyright infringements were violations of criminal copyright
laws only if a defendant willfully infringed a copyright ‘for purposes
of commercial advantage or private financial gain.’"142 However, the
No Electronic Theft Act now allows criminal copyright infringement
without the requirement of commercial gain. The infringing act may
or may not be for profit.143

There is a difference, however, between the required liability in civil

copyright infringement and that in criminal copyright infringement in
the United States. Civil copyright infringement does not require
culpability and employs a strict liability regime144 where "lack of
intention to infringe is not a defense to an action for infringement." 145

In the Philippines, the Intellectual Property Code, as amended,

provides for the prosecution of criminal actions for the following
violations of intellectual property rights: Repetition of Infringement
of Patent (Section 84); Utility Model (Section 108); Industrial Design
(Section 119); Trademark Infringement (Section 155 in relation to
Section 170); Unfair Competition (Section 168 in relation to Section
170); False Designations of Origin, False Description or
Representation (Section 169.1 in relation to Section 170);
infringement of copyright, moral rights, performers’ rights,
producers’ rights, and broadcasting rights (Section 177, 193, 203, 208
and 211 in relation to Section 217); and other violations of intellectual
property rights as may be defined by law.

The Intellectual Property Code requires strict liability for copyright

infringement whether for a civil action or a criminal prosecution; it
does not require mens rea or culpa:146

SECTION 216. Remedies for Infringement. —

216.1. Any person infringing a right protected under this law

shall be liable:

a. To an injunction restraining such infringement. The

court may also order the defendant to desist from an
infringement, among others, to prevent the entry into the
channels of commerce of imported goods that involve an
infringement, immediately after customs clearance of such
goods.

b. Pay to the copyright proprietor or his assigns or heirs

such actual damages, including legal costs and other
expenses, as he may have incurred due to the infringement
as well as the profits the infringer may have made due to
such infringement, and in proving profits the plaintiff
shall be required to prove sales only and the defendant
shall be required to prove every element of cost which he
claims, or, in lieu of actual damages and profits, such
damages which to the court shall appear to be just and
shall not be regarded as penalty.

c. Deliver under oath, for impounding during the pendency

of the action, upon such terms and conditions as the court
may prescribe, sales invoices and other documents
evidencing sales, all articles and their packaging alleged to
infringe a copyright and implements for making them.

d. Deliver under oath for destruction without any

compensation all infringing copies or devices, as well as
all plates, molds, or other means for making such
infringing copies as the court may order.

e. Such other terms and conditions, including the payment

of moral and exemplary damages, which the court may
 deem proper, wise and equitable and the destruction of
infringing copies of the work even in the event of acquittal
in a criminal case.

216.2. In an infringement action, the court shall also have the

power to order the seizure and impounding of any article which
may serve as evidence in the court proceedings. (Sec. 28, P.D.
No. 49a)

SECTION 217. Criminal Penalties. — 217.1. Any person infringing any

right secured by provisions of Part IV of this Actor aiding or abetting
such infringement shall be guilty of a crime punishable by:

a. Imprisonment of one (1) year to three (3) years plus a

fine ranging from Fifty thousand pesos (₱50,000) to One
hundred fifty thousand pesos (₱150,000) for the first
offense.

b. Imprisonment of three (3) years and one (1) day to six

(6) years plus a fine ranging from One hundred fifty
thousand pesos (₱150,000) to Five hundred thousand
pesos (₱500,000) for the second offense.

c. Imprisonment of six (6) years and one (1) day to nine

(9) years plus a fine ranging from Five hundred thousand
pesos (₱500,000) to One million five hundred thousand
pesos (₱1,500,000) for the third and subsequent offenses.

d. In all cases, subsidiary imprisonment in cases of

insolvency.

217.2. In determining the number of years of imprisonment and

the amount of fine, the court shall consider the value of the
infringing materials that the defendant has produced or
manufactured and the damage that the copyright owner has
suffered by reason of the infringement.

217.3. Any person who at the time when copyright subsists in a

work has in his possession an article which he knows, or ought
to know, to be an infringing copy of the work for the purpose of:
a. Selling, letting for hire, or by way of trade offering or
exposing for sale, or hire, the article;
 b. Distributing the article for purpose of trade, or for any
other purpose to an extent that will prejudice the rights of
the copyright owner in the work; or

c. Trade exhibit of the article in public, shall be guilty of

an offense and shall be liable on conviction to
imprisonment and fine as above mentioned. (Sec. 29, P.D.
No. 49a) (Emphasis supplied)

The law is clear. Inasmuch as there is wisdom in prioritizing the flow

and exchange of ideas as opposed to rewarding the creator, it is the
plain reading of the law in conjunction with the actions of the
legislature to which we defer. We have continuously "recognized the
power of the legislature . . . to forbid certain acts in a limited class of
cases and to make their commission criminal without regard to the
intent of the doer. Such legislative enactments are based on the
experience that repressive measures which depend for their efficiency
upon proof of the dealer’s knowledge or of his intent are of little use
and rarely accomplish their purposes."147

Respondents argue that live broadcast of news requires a different

treatment in terms of good faith, intent, and knowledge to commit
infringement. To argue this point, they rely on the differences of the
media used in Habana et al. v. Robles, Columbia Pictures v. Court of
Appeals, and this case:

Petitioner ABS-CBN argues that lack of notice that the Angelo dela
Cruz was under embargo is not a defense in copyright infringement
and cites the case of Columbia Pictures vs. Court of Appeals and
Habana et al. vs. Robles(310 SCRA 511). However, these cases refer to
film and literary work where obviously there is "copying" from an
existing material so that the copier knew that he is copying from an
existing material not owned by him. But, how could respondents know
that what they are "copying was not [theirs]" when they were not
copying but merely receiving live video feed from Reuters and CNN
which they aired? What they knew and what they aired was the
Reuters live video feed and the CNN feed which GMA-7 is authorized
to carry in its news broadcast, it being a subscriber of these
companies[.]

It is apt to stress that the subject of the alleged copyright

infringement is not a film or literary work but live broadcast of news
footage. In a film or literary work, the infringer is confronted face to
face with the material he is allegedly copying and therefore knows, or
is presumed to know, that what he is copying is owned by another.
Upon the other hand, in live broadcast, the alleged infringer is not
confronted with the fact that the material he airs or re-broadcasts is
owned by another, and therefore, he cannot be charged of knowledge
of ownership of the material by another. This specially obtains in the
Angelo dela Cruz news footage which GMA-7 received from Reuters
and CNN. Reuters and CNN were beaming live videos from the
coverage which GMA-7 received as a subscriber and, in the exercise of
its rights as a subscriber, GMA-7 picked up the live video and
simultaneously re-broadcast it. In simultaneously broadcasting the
live video footage of Reuters, GMA-7 did not copy the video footage of
petitioner ABS-CBN[.]148 (Emphasis in the original)

Respondents’ arguments must fail.

Respondents are involved and experienced in the broadcasting

business. They knew that there would be consequences in carrying
ABS-CBN’s footage in their broadcast. That is why GMA-7 allegedly cut
the feed from Reuters upon seeing ABS-CBN’s ogo and reporter. To
admit a different treatment for broadcasts would mean abandonment
of a broadcasting organization’s minimum rights, including copyright
on the broadcast material and the right against unauthorized
rebroadcast of copyrighted material. The nature of broadcast
technology is precisely why related or neighboring rights were
created and developed. Carving out an exception for live broadcasts
would go against our commitments under relevant international
treaties and agreements, which provide for the same minimum
rights.149

Contrary to respondents’ assertion, this court in Habana,150 reiterating

the ruling in Columbia Pictures,151 ruled that lack of knowledge of
infringement is not a valid defense. Habana and Columbia Pictures
may have different factual scenarios from this case, but their rulings
on copyright infringement are analogous. In Habana, petitioners were
the authors and copyright owners of English textbooks and
workbooks. The case was anchored on the protection of literary and
artistic creations such as books. In Columbia Pictures, video tapes of
copyrighted films were the subject of the copyright infringement suit.

In Habana, knowledge of the infringement is presumed when the

infringer commits the prohibited act:
The essence of intellectual piracy should be essayed in conceptual
terms in order to underscore its gravity by an appropriate
understanding thereof. Infringement of a copyright is a trespass on a
private domain owned and occupied by the owner of the copyright,
and, therefore, protected by law, and infringement of copyright, or
piracy, which is a synonymous term in this connection, consists in the
doing by any person, without the consent of the owner of the
copyright, of anything the sole right to do which is conferred by
statute on the owner of the copyright.

....

A copy of a piracy is an infringement of the original, and it is no

defense that the pirate, in such cases, did not know whether or not he
was infringing any copyright; he at least knew that what he was
copying was not his, and he copied at his peril.

....

In cases of infringement, copying alone is not what is prohibited. The

copying must produce an "injurious effect". Here, the injury consists
in that respondent Robles lifted from petitioners’ book materials that
were the result of the latter’s research work and compilation and
misrepresented them as her own. She circulated the book DEP for
commercial use and did not acknowledge petitioners as her
source.152 (Emphasis supplied)

Habana and Columbia Pictures did not require knowledge of the

infringement to constitute a violation of the copyright. One does not
need to know that he or she is copying a work without consent to
violate copyright law. Notice of fact of the embargo from Reuters or
CNN is not material to find probable cause that respondents
committed infringement. Knowledge of infringement is only material
when the person is charged of aiding and abetting a copyright
infringement under Section 217 of the Intellectual Property Code.153

We look at the purpose of copyright in relation to criminal

prosecutions requiring willfulness: Most importantly, in defining the
contours of what it means to willfully infringe copyright for purposes
of criminal liability, the courts should remember the ultimate aim of
copyright. Copyright is not primarily about providing the strongest
possible protection for copyright owners so that they have the highest
possible incentive to create more works. The control given to
copyright owners is only a means to an end: the promotion of
knowledge and learning. Achieving that underlying goal of copyright
law also requires access to copyrighted works and it requires
permitting certain kinds of uses of copyrighted works without the
permission of the copyright owner. While a particular defendant may
appear to be deserving of criminal sanctions, the standard for
determining willfulness should be set with reference to the larger
goals of copyright embodied in the Constitution and the history of
copyright in this country.154

In addition, "[t]he essence of intellectual piracy should be essayed in

conceptual terms in order to underscore its gravity by an appropriate
understanding thereof. Infringement of a copyright is a trespass on a
private domain owned and occupied by the owner of the copyright,
and, therefore, protected by law, and infringement of copyright, or
piracy, which is a synonymous term in this connection, consists in the
doing by any person, without the consent of the owner of the
copyright, of anything the sole right to do which is conferred by
statute on the owner of the copyright."155

Intellectual property rights, such as copyright and the neighboring

right against rebroadcasting, establish an artificial and limited
monopoly to reward creativity. Without these legally enforceable
rights, creators will have extreme difficulty recovering their costs and
capturing the surplus or profit of their works as reflected in their
markets. This, in turn, is based on the theory that the possibility of
gain due to creative work creates an incentive which may improve
efficiency or simply enhance consumer welfare or utility. More
creativity redounds to the public good.

These, however, depend on the certainty of enforcement. Creativity,

by its very nature, is vulnerable to the free rider problem. It is easily
replicated despite the costs to and efforts of the original creator. The
more useful the creation is in the market, the greater the propensity
that it will be copied. The most creative and inventive individuals are
usually those who are unable to recover on their creations.

Arguments against strict liability presuppose that the Philippines has

a social, historical, and economic climate similar to those of Western
jurisdictions. As it stands, there is a current need to strengthen
intellectual property protection.
Thus, unless clearly provided in the law, offenses involving
infringement of copyright protections should be considered malum
prohibitum. It is the act of infringement, not the intent, which causes
the damage. To require or assume the need to prove intent defeats the
purpose of intellectual property protection.

Nevertheless, proof beyond reasonable doubt is still the standard for

criminal prosecutions under the Intellectual Property Code.

VIII

Respondents argue that GMA-7’s officers and employees cannot be

held liable for infringement under the Intellectual Property Code since
it does not expressly provide direct liability of the corporate officers.
They explain that "(i) a corporation may be charged and prosecuted
for a crime where the penalty is fine or both imprisonment and fine,
and if found guilty, may be fined; or (ii) a corporation may commit a
crime but if the statute prescribes the penalty therefore to be suffered
by the corporate officers, directors or employees or other persons, the
latter shall be responsible for the offense."156

Section 217 of the Intellectual Property Code states that "any person"
may be found guilty of infringement. It also imposes the penalty of
both imprisonment and fine:

Section 217. Criminal Penalties. - 217.1. Any person infringing any

right secured by provisions of Part IV of this Act or aiding or abetting
such infringement shall be guilty of a crime punishable by:

(a) Imprisonment of one (1) year to three (3) years plus a fine
ranging from Fifty thousand pesos (₱50,000) to One hundred
fifty thousand pesos (₱150,000) for the first offense.

(b) Imprisonment of three (3) years and one (1) day to six (6)
years plus a fine ranging from One hundred fifty thousand pesos
(₱150,000) to Five hundred thousand pesos (₱500,000) for the
second offense.

(c) Imprisonment of six (6) years and one (1) day to nine (9)
years plus a fine ranging from five hundred thousand pesos
(₱500,000) to One million five hundred thousand pesos
(₱1,500,000) for the third and subsequent offenses.
 (d) In all cases, subsidiary imprisonment in cases of insolvency.
(Emphasis supplied) Corporations have separate and distinct
personalities from their officers or directors.157 This court has
ruled that corporate officers and/or agents may be held
individually liable for a crime committed under the Intellectual
Property Code:158

Petitioners, being corporate officers and/or directors, through whose

act, default or omission the corporation commits a crime, may
themselves be individually held answerable for the crime. . . . The
existence of the corporate entity does not shield from prosecution the
corporate agent who knowingly and intentionally caused the
corporation to commit a crime. Thus, petitioners cannot hide behind
the cloak of the separate corporate personality of the corporation to
escape criminal liability. A corporate officer cannot protect himself
behind a corporation where he is the actual, present and efficient
actor.159

However, the criminal liability of a corporation’s officers or

employees stems from their active participation in the commission of
the wrongful act:

The principle applies whether or not the crime requires the

consciousness of wrongdoing. It applies to those corporate agents who
themselves commit the crime and to those, who, by virtue of their
managerial positions or other similar relation to the corporation,
could be deemed responsible for its commission, if by virtue of their
relationship to the corporation, they had the power to prevent the act.
Moreover, all parties active in promoting a crime, whether agents or
not, are principals. Whether such officers or employees are benefited
by their delictual acts is not a touchstone of their criminal liability.
Benefit is not an operative fact.160 (Emphasis supplied) An accused’s
participation in criminal acts involving violations of intellectual
property rights is the subject of allegation and proof. The showing
that the accused did the acts or contributed in a meaningful way in the
commission of the infringements is certainly different from the
argument of lack of intent or good faith. Active participation requires
a showing of overt physical acts or intention to commit such acts.
Intent or good faith, on the other hand, are inferences from acts
proven to have been or not been committed.

We find that the Department of Justice committed grave abuse of

discretion when it resolved to file the Information against
respondents despite lack of proof of their actual participation in the
alleged crime.

Ordering the inclusion of respondents Gozon, GMA-7 President;

Duavit, Jr., Executive Vice-President; Flores, Vice-President for News
and Public Affairs; and Soho, Director for News, as respondents,
Secretary Agra overturned the City Prosecutor’s finding that only
respondents Dela Peña-Reyes and Manalastas are responsible for the
crime charged due to their duties.161 The Agra Resolution reads:

Thus, from the very nature of the offense and the penalty involved, it
is necessary that GMA-7’s directors, officers, employees or other
officers thereof responsible for the offense shall be charged and
penalized for violation of the Sections 177 and 211 of Republic Act No.
8293. In their complaint for libel, respondents Felipe L Gozon,
Gilberto R. Duavit, Jr., Marissa L. Flores, Jessica A.Soho, Grace Dela
Pena-Reyes, John Oliver T. Manalastas felt they were aggrieved
because they were "in charge of the management, operations and
production of news and public affairs programs of the network"
(GMA-7). This is clearly an admission on respondents’ part. Of course,
respondents may argue they have no intention to infringe the
copyright of ABS-CBN; that they acted in good faith; and that they did
not directly cause the airing of the subject footage, but again this is
preliminary investigation and what is required is simply probable
cause. Besides, these contentions can best be addressed in the course
of trial.162 (Citation omitted)

In contrast, the Office of the City Prosecutor, in the Resolution dated

December 3, 2004, found that respondents Gozon, Duavit, Jr., Flores,
and Soho did not have active participation in the commission of the
crime charged:

This Office, however, does not subscribe to the view that respondents
Atty. Felipe Gozon, Gilberto Duavit, Marissa Flores and Jessica Soho
should be held liable for the said offense. Complainant failed to
present clear and convincing evidence that the said respondents
conspired with Reyes and Manalastas. No evidence was adduced to
prove that these respondents had an active participation in the actual
commission of the copyright infringement or they exercised their
moral ascendancy over Reyes and Manalastas in airing the said
footage. It must be stressed that, conspiracy must be established by
positive and conclusive evidence. It must be shown to exist as clearly
and convincingly as the commission of the offense itself. 163 (Emphasis
supplied, citations omitted)

The City Prosecutor found respondents Dela Peña-Reyes and

Manalastas liable due to the nature of their work and responsibilities.
He found that:

[t]his Office however finds respondents Grace Dela Peña-Reyes and

John Oliver T. Manalastas liable for copyright infringement penalized
under Republic Act No. 8293. It is undisputed that complainant
ABSCBN holds the exclusive ownership and copyright over the "Angelo
[d]ela Cruz news footage". Hence, any airing and re-broadcast of the
said footage without any consent and authority from ABS-CBN will be
held as an infringement and violation of the intellectual property
rights of the latter. Respondents Grace Dela Peña-Reyes as the Head of
the News Operation and John Oliver T. Manalastas as the Program
Manager cannot escape liability since the news control room was
under their direct control and supervision. Clearly, they must have
been aware that the said footage coming from Reuters or CNN has a
"No Access Philippines" advisory or embargo thus cannot be re-
broadcast. We find no merit to the defense of ignorance interposed by
the respondents. It is simply contrary to human experience and logic
that experienced employees of an established broadcasting network
would be remiss in their duty in ascertaining if the said footage has an
embargo.164 (Emphasis supplied)

We agree with the findings as to respondents Dela Peña-Reyes and

Manalastas. Both respondents committed acts that promoted
infringement of ABS-CBN’s footage. We note that embargoes are
common occurrences in and between news agencies and/or broadcast
organizations.165 Under its Operations Guide, Reuters has two (2)
types of embargoes: transmission embargo and publication
embargo.166 Under ABS-CBN’s service contract with Reuters, Reuters
will embargo any content contributed by ABS-CBN from other
broadcast subscribers within the same geographical location:

4a. Contributed Content

You agree to supply us at our request with news and sports news
stories broadcast on the Client Service of up to three (3) minutes each
for use in our Services on a non-exclusive basis and at a cost of
US$300.00 (Three Hundred United States Dollars) per story. In
respect of such items we agree to embargo them against use by other
broadcast subscribers in the Territory and confirm we will observe all
other conditions of usage regarding Contributed Content, as specified
in Section 2.5 of the Reuters Business Principles for Television
Services. For the purposes of clarification, any geographical
restriction imposed by you on your use of Contributed Content will not
prevent us or our clients from including such Contributed Content in
online transmission services including the internet. We acknowledge
Contributed Content is your copyright and we will not acquire any
intellectual property rights in the Contributed Content.167 (Emphasis
supplied)

Respondents Dela Peña-Reyes and Manalastas merely denied receiving

the advisory sent by Reuters to its clients, including GMA-7. As in the
records, the advisory reads:

ADVISORY - - +++LIVE COVER PLANS+++

PHILIPPINES: HOSTAGE RETURN

**ATTENTION ALL CLIENTS**

PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER

PLANNED FOR THURSDAY, JULY 22:

....

SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.168

There is probable cause that respondents Dela Peña-Reyes and

Manalastas directly committed copyright infringement of ABS-CBN’s
news footage to warrant piercing of the corporate veil. They are
responsible in airing the embargoed Angelo dela Cruz footage. They
could have prevented the act of infringement had they been diligent in
their functions as Head of News Operations and Program Manager.

Secretary Agra, however, committed grave abuse of discretion when

he ordered the filing of the Information against all respondents
despite the erroneous piercing of the corporate veil. Respondents
Gozon, Duavit, Jr., Flores, and Soho cannot be held liable for the
criminal liability of the corporation.

Mere membership in the Board or being President per se does not

mean knowledge, approval, and participation in the act alleged as
criminal. There must be a showing of active participation, not simply
a constructive one.

Under principles of criminal law, the principals of a crime are those

"who take a direct part in the execution of the act; [t]hose who
directly force or induce others to commit it; [or] [t]hose who
cooperate in the commission of the offense by another act without
which it would not have been accomplished."169 There is conspiracy
"when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it":170

Conspiracy is not presumed. Like the physical acts constituting the

crime itself, the elements of conspiracy must be proven beyond
reasonable doubt.1âwphi1 While conspiracy need not be established by
direct evidence, for it may be inferred from the conduct of the accused
before, during and after the commission of the crime, all taken
together, however, the evidence must be strong enough to show the
community of criminal design. For conspiracy to exist, it is essential
that there must be a conscious design to commit an offense.
Conspiracy is the product of intentionality on the part of the cohorts.

It is necessary that a conspirator should have performed some overt

act as a direct or indirect contribution to the execution of the crime
committed. The overt act may consist of active participation in the
actual commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the commission
of the crime or by exerting moral ascendancy over the other co-
conspirators[.]171 (Emphasis supplied, citations omitted)

In sum, the trial court erred in failing to resume the proceedings after
the designated period. The Court of Appeals erred when it held that
Secretary Agra committed errors of jurisdiction despite its own
pronouncement that ABS-CBN is the owner of the copyright on the
news footage. News should be differentiated from expression of the
news, particularly when the issue involves rebroadcast of news
footage. The Court of Appeals also erroneously held that good faith,
as. well as lack of knowledge of infringement, is a defense against
criminal prosecution for copyright and neighboring rights
infringement. In its current form, the Intellectual Property Code is
malum prohibitum and prescribes a strict liability for copyright
infringement. Good faith, lack of knowledge of the copyright, or lack
of intent to infringe is not a defense against copyright infringement.
Copyright, however, is subject to the rules of fair. use and will be
judged on a case-to-case basis. Finding probable cause includes a
determination of the defendant's active participation, particularly
when the corporate veil is pierced in cases involving a corporation's
criminal liability.

WHEREFORE, the Petition is partially GRANTED. The Department of

Justice Resolution dated June 29, 2010 ordering the filing of the
Information is hereby REINSTATED as to respondents Grace Dela
Pena-Reyes and John Oliver T. Manalastas. Branch 93 of the Regional
Trial Court of Quezon City is directed to continue with the proceedings
in Criminal Case No. Q-04-131533.

SO ORDERED.

EN BANC

G.R. No. 149453. April 1, 2003]

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE,

DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE,
CHIEF STATE PROSECUTOR JOVENCITO ZUO, STATE
PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND
ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY
PROSECUTOR OF QUEZON CITY CLARO ARELLANO, petitioners,
vs. PANFILO M. LACSON, respondent.

RESOLUTION

CALLEJO, SR., J.:

Before the Court is the petitioners Motion for Reconsideration1 of the

Resolution2 dated May 28, 2002, remanding this case to the Regional
Trial Court (RTC) of Quezon City, Branch 81, for the determination of
several factual issues relative to the application of Section 8 of Rule
117 of the Revised Rules of Criminal Procedure on the dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 filed against the
respondent and his co-accused with the said court. In the aforesaid
criminal cases, the respondent and his co-accused were charged with
multiple murder for the shooting and killing of eleven male persons
identified as Manuel Montero, a former Corporal of the Philippine
Army, Rolando Siplon, Sherwin Abalora, who was 16 years old, Ray
Abalora, who was 19 years old, Joel Amora, Jevy Redillas, Meleubren
Sorronda, who was 14 years old,3 Pacifico Montero, Jr., of the 44th
Infantry Batallion of the Philippine Army, Welbor Elcamel, SPO1
Carlito Alap-ap of the Zamboanga PNP, and Alex Neri, former Corporal
of the 44th Infantry Batallion of the Philippine Army, bandied as
members of the Kuratong Baleleng Gang. The respondent opposed
petitioners motion for reconsideration.4cräläwvirtualibräry

The Court ruled in the Resolution sought to be reconsidered that the

provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-
81689 were with the express consent of the respondent as he himself
moved for said provisional dismissal when he filed his motion for
judicial determination of probable cause and for examination of
witnesses. The Court also held therein that although Section 8, Rule
117 of the Revised Rules of Criminal Procedure could be given
retroactive effect, there is still a need to determine whether the
requirements for its application are attendant. The trial court was
thus directed to resolve the following:

... (1) whether the provisional dismissal of the cases had the express
consent of the accused; (2) whether it was ordered by the court after
notice to the offended party; (3) whether the 2-year period to revive it
has already lapsed; (4) whether there is any justification for the filing
of the cases beyond the 2-year period; (5) whether notices to the
offended parties were given before the cases of respondent Lacson
were dismissed by then Judge Agnir; (6) whether there were affidavits
of desistance executed by the relatives of the three (3) other victims;
(7) whether the multiple murder cases against respondent Lacson are
being revived within or beyond the 2-year bar.

The Court further held that the reckoning date of the two-year bar had
to be first determined whether it shall be from the date of the order of
then Judge Agnir, Jr. dismissing the cases, or from the dates of receipt
thereof by the various offended parties, or from the date of effectivity
of the new rule. According to the Court, if the cases were revived only
after the two-year bar, the State must be given the opportunity to
justify its failure to comply with the said time-bar. It emphasized that
the new rule fixes a time-bar to penalize the State for its inexcusable
delay in prosecuting cases already filed in court. However, the State is
not precluded from presenting compelling reasons to justify the
revival of cases beyond the two-year bar.

In support of their Motion for Reconsideration, the petitioners

contend that (a) Section 8, Rule 117 of the Revised Rules of Criminal
Procedure is not applicable to Criminal Cases Nos. Q-99-81679 to Q-
99-81689; and (b) the time-bar in said rule should not be applied
retroactively.

The Court shall resolve the issues seriatim.

I. SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL

PROCEDURE IS NOT APPLICABLE TO CRIMINAL CASES NOS. Q-99-
81679 TO Q-99-81689.

The petitioners aver that Section 8, Rule 117 of the Revised Rules of
Criminal Procedure is not applicable to Criminal Cases Nos. Q-99-
81679 to Q-99-81689 because the essential requirements for its
application were not present when Judge Agnir, Jr., issued his
resolution of March 29, 1999. Disagreeing with the ruling of the Court,
the petitioners maintain that the respondent did not give his express
consent to the dismissal by Judge Agnir, Jr., of Criminal Cases Nos. Q-
99-81679 to Q-99-81689. The respondent allegedly admitted in his
pleadings filed with the Court of Appeals and during the hearing
thereat that he did not file any motion to dismiss said cases, or even
agree to a provisional dismissal thereof. Moreover, the heirs of the
victims were allegedly not given prior notices of the dismissal of the
said cases by Judge Agnir, Jr. According to the petitioners, the
respondents express consent to the provisional dismissal of the cases
and the notice to all the heirs of the victims of the respondents motion
and the hearing thereon are conditions sine qua non to the application
of the time-bar in the second paragraph of the new rule.

The petitioners further submit that it is not necessary that the case be
remanded to the RTC to determine whether private complainants were
notified of the March 22, 1999 hearing on the respondents motion for
judicial determination of the existence of probable cause. The records
allegedly indicate clearly that only the handling city prosecutor was
furnished a copy of the notice of hearing on said motion. There is
allegedly no evidence that private prosecutor Atty. Godwin Valdez was
properly retained and authorized by all the private complainants to
represent them at said hearing. It is their contention that Atty. Valdez
merely identified the purported affidavits of desistance and that he
did not confirm the truth of the allegations therein.

The respondent, on the other hand, insists that, as found by the Court
in its Resolution and Judge Agnir, Jr. in his resolution, the respondent
himself moved for the provisional dismissal of the criminal cases. He
cites the resolution of Judge Agnir, Jr. stating that the respondent and
the other accused filed separate but identical motions for the
dismissal of the criminal cases should the trial court find no probable
cause for the issuance of warrants of arrest against them.

The respondent further asserts that the heirs of the victims, through
the public and private prosecutors, were duly notified of said motion
and the hearing thereof. He contends that it was sufficient that the
public prosecutor was present during the March 22, 1999 hearing on
the motion for judicial determination of the existence of probable
cause because criminal actions are always prosecuted in the name of
the People, and the private complainants merely prosecute the civil
aspect thereof.

The Court has reviewed the records and has found the contention of
the petitioners meritorious.

Section 8, Rule 117 of the Revised Rules of Criminal Procedure reads:

Sec. 8. Provisional dismissal. A case shall not be provisionally

dismissed except with the express consent of the accused and with
notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not

exceeding six (6) years or a fine of any amount, or both, shall become
permanent one (1) year after issuance of the order without the case
having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal
shall become permanent two (2) years after issuance of the order
without the case having been revived.

Having invoked said rule before the petitioners-panel of prosecutors

and before the Court of Appeals, the respondent is burdened to
establish the essential requisites of the first paragraph thereof,
namely:

1. the prosecution with the express conformity of the accused or the

accused moves for a provisional (sin perjuicio) dismissal of the case;
or both the prosecution and the accused move for a provisional
dismissal of the case;

2. the offended party is notified of the motion for a provisional

dismissal of the case;
3. the court issues an order granting the motion and dismissing the
case provisionally;

4. the public prosecutor is served with a copy of the order of

provisional dismissal of the case.

The foregoing requirements are conditions sine qua non to the

application of the time-bar in the second paragraph of the new rule.
The raison d etre for the requirement of the express consent of the
accused to a provisional dismissal of a criminal case is to bar him
from subsequently asserting that the revival of the criminal case will
place him in double jeopardy for the same offense or for an offense
necessarily included therein.5cräläwvirtualibräry

Although the second paragraph of the new rule states that the order of
dismissal shall become permanent one year after the issuance thereof
without the case having been revived, the provision should be
construed to mean that the order of dismissal shall become permanent
one year after service of the order of dismissal on the public
prosecutor who has control of the prosecution6 without the criminal
case having been revived. The public prosecutor cannot be expected to
comply with the timeline unless he is served with a copy of the order
of dismissal.

Express consent to a provisional dismissal is given either viva voce or

in writing. It is a positive, direct, unequivocal consent requiring no
inference or implication to supply its meaning.7 Where the accused
writes on the motion of a prosecutor for a provisional dismissal of the
case No objection or With my conformity, the writing amounts to
express consent of the accused to a provisional dismissal of the
case.8 The mere inaction or silence of the accused to a motion for a
provisional dismissal of the case9 or his failure to object to a
provisional dismissal10 does not amount to express consent.

A motion of the accused for a provisional dismissal of a case is an

express consent to such provisional dismissal.11 If a criminal case is
provisionally dismissed with the express consent of the accused, the
case may be revived only within the periods provided in the new rule.
On the other hand, if a criminal case is provisionally dismissed
without the express consent of the accused or over his objection, the
new rule would not apply. The case may be revived or refiled even
beyond the prescribed periods subject to the right of the accused to
oppose the same on the ground of double jeopardy12 or that such
revival or refiling is barred by the statute of
limitations.13cräläwvirtualibräry

The case may be revived by the State within the time-bar either by the
refiling of the Information or by the filing of a new Information for
the same offense or an offense necessarily included therein. There
would be no need of a new preliminary investigation.14 However, in a
case wherein after the provisional dismissal of a criminal case, the
original witnesses of the prosecution or some of them may have
recanted their testimonies or may have died or may no longer be
available and new witnesses for the State have emerged, a new
preliminary investigation15 must be conducted before an Information
is refiled or a new Information is filed. A new preliminary
investigation is also required if aside from the original accused, other
persons are charged under a new criminal complaint for the same
offense or necessarily included therein; or if under a new criminal
complaint, the original charge has been upgraded; or if under a new
criminal complaint, the criminal liability of the accused is upgraded
from that as an accessory to that as a principal. The accused must be
accorded the right to submit counter-affidavits and evidence. After all,
the fiscal is not called by the Rules of Court to wait in ambush; the
role of a fiscal is not mainly to prosecute but essentially to do justice
to every man and to assist the court in dispensing that
justice.16cräläwvirtualibräry

In this case, the respondent has failed to prove that the first and
second requisites of the first paragraph of the new rule were present
when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-
99-81689. Irrefragably, the prosecution did not file any motion for the
provisional dismissal of the said criminal cases. For his part, the
respondent merely filed a motion for judicial determination of
probable cause and for examination of prosecution witnesses alleging
that under Article III, Section 2 of the Constitution and the decision of
this Court in Allado v. Diokno,17 among other cases, there was a need
for the trial court to conduct a personal determination of probable
cause for the issuance of a warrant of arrest against respondent and
to have the prosecutions witnesses summoned before the court for its
examination. The respondent contended therein that until after the
trial court shall have personally determined the presence of probable
cause, no warrant of arrest should be issued against the respondent
and if one had already been issued, the warrant should be recalled by
the trial court. He then prayed therein that:
1) a judicial determination of probable cause pursuant to Section 2,
Article III of the Constitution be conducted by this Honorable Court,
and for this purpose, an order be issued directing the prosecution to
present the private complainants and their witnesses at a hearing
scheduled therefor; and

2) warrants for the arrest of the accused-movants be withheld, or, if

issued, recalled in the meantime until the resolution of this incident.

Other equitable reliefs are also prayed for.18cräläwvirtualibräry

The respondent did not pray for the dismissal, provisional or

otherwise, of Criminal Cases Nos. Q-99-81679 to Q-99-81689. Neither
did he ever agree, impliedly or expressly, to a mere provisional
dismissal of the cases. In fact, in his reply filed with the Court of
Appeals, respondent emphasized that:

... An examination of the Motion for Judicial Determination of

Probable Cause and for Examination of Prosecution Witnesses filed by
the petitioner and his other co-accused in the said criminal cases
would show that the petitioner did not pray for the dismissal of the
case. On the contrary, the reliefs prayed for therein by the petitioner
are: (1) a judicial determination of probable cause pursuant to Section
2, Article III of the Constitution; and (2) that warrants for the arrest of
the accused be withheld, or if issued, recalled in the meantime until the
resolution of the motion. It cannot be said, therefore, that the dismissal
of the case was made with the consent of the petitioner. A copy of the
aforesaid motion is hereto attached and made integral part hereof as
Annex A.19cräläwvirtualibräry

During the hearing in the Court of Appeals on July 31, 2001, the
respondent, through counsel, categorically, unequivocally, and
definitely declared that he did not file any motion to dismiss the
criminal cases nor did he agree to a provisional dismissal thereof,
thus:

JUSTICE SALONGA:

And it is your stand that the dismissal made by the Court was
provisional in nature?

ATTY. FORTUN:
It was in (sic) that the accused did not ask for it. What they
wanted at the onset was simply a judicial determination of
probable cause for warrants of arrest issued. Then Judge Agnir,
upon the presentation by the parties of their witnesses,
particularly those who had withdrawn their affidavits, made one
further conclusion that not only was this case lacking in probable
cause for purposes of the issuance of an arrest warrant but also it
did not justify proceeding to trial.

JUSTICE SALONGA:

And it is expressly provided under Section 8 that a case shall not

be provisionally dismissed except when it is with the express
conformity of the accused.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:

And with notice to the offended party.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:

Was there an express conformity on the part of the accused?

ATTY. FORTUN:

There was none, Your Honor. We were not asked to sign any
order, or any statement, which would normally be required by
the Court on pre-trial or on other matters, including other
provisional dismissal. My very limited practice in criminal
courts, Your Honor, had taught me that a judge must be very
careful on this matter of provisional dismissal. In fact they ask
the accused to come forward, and the judge himself or herself
explains the implications of a provisional dismissal. Pumapayag
ka ba dito. Puwede bang pumirma ka?

JUSTICE ROSARIO:
You were present during the proceedings?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE ROSARIO:

You represented the petitioner in this case?

ATTY. FORTUN:

That is correct, Your Honor. And there was nothing of that sort
which the good Judge Agnir, who is most knowledgeable in
criminal law, had done in respect of provisional dismissal or
the matter of Mr. Lacson agreeing to the provisional dismissal
of the case.

JUSTICE GUERRERO:

Now, you filed a motion, the other accused then filed a motion for
a judicial determination of probable cause?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE GUERRERO:

Did you make any alternative prayer in your motion that if there
is no probable cause what should the Court do?

ATTY. FORTUN:

That the arrest warrants only be withheld. That was the only
prayer that we asked. In fact, I have a copy of that particular
motion, and if I may read my prayer before the Court, it said:
Wherefore, it is respectfully prayed that (1) a judicial
determination of probable cause pursuant to Section 2, Article III
of the Constitution be conducted, and for this purpose, an order
be issued directing the prosecution to present the private
complainants and their witnesses at the scheduled hearing for
that purpose; and (2) the warrants for the arrest of the accused
be withheld, or, if issued, recalled in the meantime until
resolution of this incident.

JUSTICE GUERRERO:

There is no general prayer for any further relief?

ATTY. FORTUN:

There is but it simply says other equitable reliefs are prayed for.

JUSTICE GUERRERO:

Dont you surmise Judge Agnir, now a member of this Court,

precisely addressed your prayer for just and equitable relief to
dismiss the case because what would be the net effect of a
situation where there is no warrant of arrest being issued without
dismissing the case?

ATTY. FORTUN:

Yes, Your Honor. I will not second say (sic) yes the Good
Justice, but what is plain is we did not agree to the provisional
dismissal, neither were we asked to sign any assent to the
provisional dismissal.

JUSTICE GUERRERO:

If you did not agree to the provisional dismissal did you not file
any motion for reconsideration of the order of Judge Agnir that
the case should be dismissed?

ATTY. FORTUN:

I did not, Your Honor, because I knew fully well at that time
that my client had already been arraigned, and the
arraignment was valid as far as I was concerned. So, the
dismissal, Your Honor, by Judge Agnir operated to benefit me,
and therefore I did not take any further step in addition to
rocking the boat or clarifying the matter further because it
probably could prejudice the interest of my client.

JUSTICE GUERRERO:
Continue.20

In his memorandum in lieu of the oral argument filed with the Court
of Appeals, the respondent declared in no uncertain terms that:

Soon thereafter, the SC in early 1999 rendered a decision declaring

the Sandiganbayan without jurisdiction over the cases. The records
were remanded to the QC RTC: Upon raffle, the case was assigned to
Branch 81. Petitioner and the others promptly filed a motion for
judicial determination of probable cause (Annex B). He asked that
warrants for his arrest not be issued. He did not move for the
dismissal of the Informations, contrary to respondent OSGs
claim.21cräläwvirtualibräry

The respondents admissions made in the course of the proceedings in

the Court of Appeals are binding and conclusive on him. The
respondent is barred from repudiating his admissions absent evidence
of palpable mistake in making such admissions.22cräläwvirtualibräry

To apply the new rule in Criminal Cases Nos. Q-99-81679 to Q-99-

81689 would be to add to or make exceptions from the new rule which
are not expressly or impliedly included therein. This the Court cannot
and should not do.23cräläwvirtualibräry

The Court also agrees with the petitioners contention that no notice of
any motion for the provisional dismissal of Criminal Cases Nos. Q-99-
81679 to Q-99-81689 or of the hearing thereon was served on the
heirs of the victims at least three days before said hearing as
mandated by Rule 15, Section 4 of the Rules of Court. It must be borne
in mind that in crimes involving private interests, the new rule
requires that the offended party or parties or the heirs of the victims
must be given adequate a priori notice of any motion for the
provisional dismissal of the criminal case. Such notice may be served
on the offended party or the heirs of the victim through the private
prosecutor, if there is one, or through the public prosecutor who in
turn must relay the notice to the offended party or the heirs of the
victim to enable them to confer with him before the hearing or appear
in court during the hearing. The proof of such service must be shown
during the hearing on the motion, otherwise, the requirement of the
new rule will become illusory. Such notice will enable the offended
party or the heirs of the victim the opportunity to seasonably and
effectively comment on or object to the motion on valid grounds,
including: (a) the collusion between the prosecution and the accused
for the provisional dismissal of a criminal case thereby depriving the
State of its right to due process; (b) attempts to make witnesses
unavailable; or (c) the provisional dismissal of the case with the
consequent release of the accused from detention would enable him to
threaten and kill the offended party or the other prosecution
witnesses or flee from Philippine jurisdiction, provide opportunity for
the destruction or loss of the prosecutions physical and other evidence
and prejudice the rights of the offended party to recover on the civil
liability of the accused by his concealment or furtive disposition of his
property or the consequent lifting of the writ of preliminary
attachment against his property.

In the case at bar, even if the respondents motion for a determination

of probable cause and examination of witnesses may be considered for
the nonce as his motion for a provisional dismissal of Criminal Cases
Nos. Q-99-81679 to Q-99-81689, however, the heirs of the victims
were not notified thereof prior to the hearing on said motion on
March 22, 1999. It must be stressed that the respondent filed his
motion only on March 17, 1999 and set it for hearing on March 22,
1999 or barely five days from the filing thereof. Although the public
prosecutor was served with a copy of the motion, the records do not
show that notices thereof were separately given to the heirs of the
victims or that subpoenae were issued to and received by them,
including those who executed their affidavits of desistance who were
residents of Dipolog City or Pian, Zamboanga del Norte or Palompon,
Leyte.24 There is as well no proof in the records that the public
prosecutor notified the heirs of the victims of said motion or of the
hearing thereof on March 22, 1999. Although Atty. Valdez entered his
appearance as private prosecutor,25 he did so only for some but not all
the close kins of the victims, namely, Nenita Alap-ap, Imelda Montero,
Margarita Redillas, Rufino Siplon, Carmelita Elcamel, Myrna Abalora,
and Leonora Amora who (except for Rufino Siplon)26 executed their
respective affidavits of desistance.27 There was no appearance for the
heirs of Alex Neri, Pacifico Montero, Jr., and Meleubren Sorronda.
There is no proof on record that all the heirs of the victims were
served with copies of the resolution of Judge Agnir, Jr. dismissing the
said cases. In fine, there never was any attempt on the part of the trial
court, the public prosecutor and/or the private prosecutor to notify all
the heirs of the victims of the respondents motion and the hearing
thereon and of the resolution of Judge Agnir, Jr. dismissing said cases.
The said heirs were thus deprived of their right to be heard on the
respondents motion and to protect their interests either in the trial
court or in the appellate court.
Since the conditions sine qua non for the application of the new rule
were not present when Judge Agnir, Jr. issued his resolution, the State
is not barred by the time limit set forth in the second paragraph of
Section 8 of Rule 117 of the Revised Rules of Criminal Procedure. The
State can thus revive or refile Criminal Cases Nos. Q-99-81679 to Q-
99-81689 or file new Informations for multiple murder against the
respondent.

II. THE TIME-BAR IN SECTION 8, RULE 117 OF THE REVISED RULES

OF CRIMINAL PROCEDURE SHOULD NOT BE APPLIED
RETROACTIVELY.

The petitioners contend that even on the assumption that the

respondent expressly consented to a provisional dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 and all the heirs of the victims
were notified of the respondents motion before the hearing thereon
and were served with copies of the resolution of Judge Agnir, Jr.
dismissing the eleven cases, the two-year bar in Section 8 of Rule 117
of the Revised Rules of Criminal Procedure should be applied
prospectively and not retroactively against the State. To apply the
time limit retroactively to the criminal cases against the respondent
and his co-accused would violate the right of the People to due
process, and unduly impair, reduce, and diminish the States
substantive right to prosecute the accused for multiple murder. They
posit that under Article 90 of the Revised Penal Code, the State had
twenty years within which to file the criminal complaints against the
accused. However, under the new rule, the State only had two years
from notice of the public prosecutor of the order of dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 within which to revive
the said cases. When the new rule took effect on December 1, 2000,
the State only had one year and three months within which to revive
the cases or refile the Informations. The period for the State to charge
respondent for multiple murder under Article 90 of the Revised Penal
Code was considerably and arbitrarily reduced. They submit that in
case of conflict between the Revised Penal Code and the new rule, the
former should prevail. They also insist that the State had consistently
relied on the prescriptive periods under Article 90 of the Revised
Penal Code. It was not accorded a fair warning that it would forever be
barred beyond the two-year period by a retroactive application of the
new rule.28 Petitioners thus pray to the Court to set aside its
Resolution of May 28, 2002.
For his part, the respondent asserts that the new rule under Section 8
of Rule 117 of the Revised Rules of Criminal Procedure may be applied
retroactively since there is no substantive right of the State that may
be impaired by its application to the criminal cases in question since
[t]he States witnesses were ready, willing and able to provide their
testimony but the prosecution failed to act on these cases until it
became politically expedient in April 2001 for them to do
so.29 According to the respondent, penal laws, either procedural or
substantive, may be retroactively applied so long as they favor the
accused.30 He asserts that the two-year period commenced to run on
March 29, 1999 and lapsed two years thereafter was more than
reasonable opportunity for the State to fairly indict him. 31 In any
event, the State is given the right under the Courts assailed Resolution
to justify the filing of the Information in Criminal Cases Nos. 01-
101102 to 01-101112 beyond the time-bar under the new rule.

The respondent insists that Section 8 of Rule 117 of the Revised Rules
of Criminal Procedure does not broaden the substantive right of
double jeopardy to the prejudice of the State because the prohibition
against the revival of the cases within the one-year or two-year
periods provided therein is a legal concept distinct from the
prohibition against the revival of a provisionally dismissed case
within the periods stated in Section 8 of Rule 117. Moreover, he claims
that the effects of a provisional dismissal under said rule do not
modify or negate the operation of the prescriptive period under
Article 90 of the Revised Penal Code. Prescription under the Revised
Penal Code simply becomes irrelevant upon the application of Section
8, Rule 117 because a complaint or information has already been filed
against the accused, which filing tolls the running of the prescriptive
period under Article 90.32cräläwvirtualibräry

The Court agrees with the respondent that the new rule is not a
statute of limitations. Statutes of limitations are construed as acts of
grace, and a surrender by the sovereign of its right to prosecute or of
its right to prosecute at its discretion. Such statutes are considered as
equivalent to acts of amnesty founded on the liberal theory that
prosecutions should not be allowed to ferment endlessly in the files of
the government to explode only after witnesses and proofs necessary
for the protection of the accused have by sheer lapse of time passed
beyond availability.33 The periods fixed under such statutes are
jurisdictional and are essential elements of the offenses
covered.34cräläwvirtualibräry
On the other hand, the time-bar under Section 8 of Rule 117 is akin to
a special procedural limitation qualifying the right of the State to
prosecute making the time-bar an essence of the given right or as an
inherent part thereof, so that the lapse of the time-bar operates to
extinguish the right of the State to prosecute the
accused.35cräläwvirtualibräry

The time-bar under the new rule does not reduce the periods under
Article 90 of the Revised Penal Code, a substantive law.36 It is but a
limitation of the right of the State to revive a criminal case against the
accused after the Information had been filed but subsequently
provisionally dismissed with the express consent of the accused. Upon
the lapse of the timeline under the new rule, the State is presumed,
albeit disputably, to have abandoned or waived its right to revive the
case and prosecute the accused. The dismissal becomes ipso
facto permanent. He can no longer be charged anew for the same
crime or another crime necessarily included therein.37 He is spared
from the anguish and anxiety as well as the expenses in any new
indictments.38 The State may revive a criminal case beyond the one-
year or two-year periods provided that there is a justifiable necessity
for the delay.39 By the same token, if a criminal case is dismissed on
motion of the accused because the trial is not concluded within the
period therefor, the prescriptive periods under the Revised Penal Code
are not thereby diminished.40 But whether or not the prosecution of
the accused is barred by the statute of limitations or by the lapse of
the time-line under the new rule, the effect is basically the same. As
the State Supreme Court of Illinois held:

This, in effect, enacts that when the specified period shall have
arrived, the right of the state to prosecute shall be gone, and the
liability of the offender to be punishedto be deprived of his
libertyshall cease. Its terms not only strike down the right of action
which the state had acquired by the offense, but also remove the flaw
which the crime had created in the offenders title to liberty. In this
respect, its language goes deeper than statutes barring civil remedies
usually do. They expressly take away only the remedy by suit, and that
inferentially is held to abate the right which such remedy would
enforce, and perfect the title which such remedy would invade; but
this statute is aimed directly at the very right which the state has
against the offenderthe right to punish, as the only liability which the
offender has incurred, and declares that this right and this liability
are at an end. 41cräläwvirtualibräry
The Court agrees with the respondent that procedural laws may be
applied retroactively. As applied to criminal law, procedural law
provides or regulates the steps by which one who has committed a
crime is to be punished. In Tan, Jr. v. Court of Appeals,42 this Court
held that:

Statutes regulating the procedure of the courts will be construed as

applicable to actions pending and undetermined at the time of their
passage. Procedural laws are retroactive in that sense and to that
extent. The fact that procedural statutes may somehow affect the
litigants rights may not preclude their retroactive application to
pending actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely
affected. Nor is the retroactive application of procedural statutes
constitutionally objectionable. The reason is that as a general rule no
vested right may attach to, nor arise from, procedural laws. It has
been held that a person has no vested right in any particular remedy,
and a litigant cannot insist on the application to the trial of his case,
whether civil or criminal, of any other than the existing rules of
procedure.

It further ruled therein that a procedural law may not be applied

retroactively if to do so would work injustice or would involve
intricate problems of due process or impair the independence of the
Court. In a per curiam decision in Cipriano v. City of Houma,43 the
United States Supreme Court ruled that where a decision of the court
would produce substantial inequitable results if applied retroactively,
there is ample basis for avoiding the injustice of hardship by a holding
of nonretroactivity.44 A construction of which a statute is fairly
susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, and injurious consequences.45 This Court
should not adopt an interpretation of a statute which produces absurd,
unreasonable, unjust, or oppressive results if such interpretation
could be avoided.46 Time and again, this Court has decreed that
statutes are to be construed in light of the purposes to be achieved
and the evils sought to be remedied. In construing a statute, the
reason for the enactment should be kept in mind and the statute
should be construed with reference to the intended scope and
purpose.47cräläwvirtualibräry

Remedial legislation, or procedural rule, or doctrine of the Court

designed to enhance and implement the constitutional rights of
parties in criminal proceedings may be applied retroactively or
prospectively depending upon several factors, such as the history of
the new rule, its purpose and effect, and whether the retrospective
application will further its operation, the particular conduct sought to
be remedied and the effect thereon in the administration of justice
and of criminal laws in particular.48 In a per curiam decision
in Stefano v. Woods,49 the United States Supreme Court catalogued the
factors in determining whether a new rule or doctrine enunciated by
the High Court should be given retrospective or prospective effect:

(a) the purpose to be served by the new standards, (b) the extent of
the reliance by law enforcement authorities on the old standards, and
(c) the effect on the administration of justice of a retroactive
application of the new standards.

In this case, the Court agrees with the petitioners that the time-bar of
two years under the new rule should not be applied retroactively
against the State.

In the new rule in question, as now construed by the Court, it has

fixed a time-bar of one year or two years for the revival of criminal
cases provisionally dismissed with the express consent of the accused
and with a priori notice to the offended party. The time-bar may
appear, on first impression, unreasonable compared to the periods
under Article 90 of the Revised Penal Code. However, in fixing the
time-bar, the Court balanced the societal interests and those of the
accused for the orderly and speedy disposition of criminal cases with
minimum prejudice to the State and the accused. It took into account
the substantial rights of both the State and of the accused to due
process. The Court believed that the time limit is a reasonable period
for the State to revive provisionally dismissed cases with the consent
of the accused and notice to the offended parties. The time-bar fixed
by the Court must be respected unless it is shown that the period is
manifestly short or insufficient that the rule becomes a denial of
justice.50 The petitioners failed to show a manifest shortness or
insufficiency of the time-bar.

The new rule was conceptualized by the Committee on the Revision of

the Rules and approved by the Court en banc primarily to enhance the
administration of the criminal justice system and the rights to due
process of the State and the accused by eliminating the deleterious
practice of trial courts of provisionally dismissing criminal cases on
motion of either the prosecution or the accused or jointly, either with
no time-bar for the revival thereof or with a specific or definite period
for such revival by the public prosecutor. There were times when such
criminal cases were no longer revived or refiled due to causes beyond
the control of the public prosecutor or because of the indolence,
apathy or the lackadaisical attitude of public prosecutors to the
prejudice of the State and the accused despite the mandate to public
prosecutors and trial judges to expedite criminal
51
proceedings. cräläwvirtualibräry

It is almost a universal experience that the accused welcomes delay as

it usually operates in his favor,52 especially if he greatly fears the
consequences of his trial and conviction. He is hesitant to disturb the
hushed inaction by which dominant cases have been known to
expire.53cräläwvirtualibräry

The inordinate delay in the revival or refiling of criminal cases may

impair or reduce the capacity of the State to prove its case with the
disappearance or nonavailability of its witnesses. Physical evidence
may have been lost. Memories of witnesses may have grown dim or
have faded. Passage of time makes proof of any fact more
difficult.54 The accused may become a fugitive from justice or commit
another crime. The longer the lapse of time from the dismissal of the
case to the revival thereof, the more difficult it is to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a

criminal case does not terminate a criminal case. The possibility that
the case may be revived at any time may disrupt or reduce, if not
derail, the chances of the accused for employment, curtail his
association, subject him to public obloquy and create anxiety in him
and his family. He is unable to lead a normal life because of
community suspicion and his own anxiety. He continues to suffer
those penalties and disabilities incompatible with the presumption of
innocence.55 He may also lose his witnesses or their memories may
fade with the passage of time. In the long run, it may diminish his
capacity to defend himself and thus eschew the fairness of the entire
criminal justice system.56cräläwvirtualibräry

The time-bar under the new rule was fixed by the Court to excise the
malaise that plagued the administration of the criminal justice system
for the benefit of the State and the accused; not for the accused only.

The Court agrees with the petitioners that to apply the time-bar
retroactively so that the two-year period commenced to run on March
31, 1999 when the public prosecutor received his copy of the
resolution of Judge Agnir, Jr. dismissing the criminal cases is
inconsistent with the intendment of the new rule. Instead of giving
the State two years to revive provisionally dismissed cases, the State
had considerably less than two years to do so. Thus, Judge Agnir, Jr.
dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689 on March
29, 1999. The new rule took effect on December 1, 2000. If the Court
applied the new time-bar retroactively, the State would have only one
year and three months or until March 31, 2001 within which to revive
these criminal cases. The period is short of the two-year period fixed
under the new rule. On the other hand, if the time limit is applied
prospectively, the State would have two years from December 1, 2000
or until December 1, 2002 within which to revive the cases. This is in
consonance with the intendment of the new rule in fixing the time-bar
and thus prevent injustice to the State and avoid absurd,
unreasonable, oppressive, injurious, and wrongful results in the
administration of justice.

The period from April 1, 1999 to November 30, 1999 should be

excluded in the computation of the two-year period because the rule
prescribing it was not yet in effect at the time and the State could not
be expected to comply with the time-bar. It cannot even be argued
that the State waived its right to revive the criminal cases against
respondent or that it was negligent for not reviving them within the
two-year period under the new rule. As the United States Supreme
Court said, per Justice Felix Frankfurter, in Griffin v.
57
People: cräläwvirtualibräry

We should not indulge in the fiction that the law now announced has
always been the law and, therefore, that those who did not avail
themselves of it waived their rights .

The two-year period fixed in the new rule is for the benefit of both the
State and the accused. It should not be emasculated and reduced by an
inordinate retroactive application of the time-bar therein provided
merely to benefit the accused. For to do so would cause an injustice of
hardship to the State and adversely affect the administration of
justice in general and of criminal laws in particular.

To require the State to give a valid justification as a condition sine qua

non to the revival of a case provisionally dismissed with the express
consent of the accused before the effective date of the new rule is to
assume that the State is obliged to comply with the time-bar under the
new rule before it took effect. This would be a rank denial of justice.
The State must be given a period of one year or two years as the case
may be from December 1, 2000 to revive the criminal case without
requiring the State to make a valid justification for not reviving the
case before the effective date of the new rule. Although in criminal
cases, the accused is entitled to justice and fairness, so is the State. As
the United States Supreme Court said, per Mr. Justice Benjamin
Cardozo, in Snyder v. State of Massachussetts,58 the concept of
fairness must not be strained till it is narrowed to a filament. We are
to keep the balance true. In Dimatulac v. Villon,59 this Court
emphasized that the judges action must not impair the substantial
rights of the accused nor the right of the State and offended party to
due process of law. This Court further said:

Indeed, for justice to prevail, the scales must balance; justice is not to
be dispensed for the accused alone. The interests of society and the
offended parties which have been wronged must be equally
considered. Verily, a verdict of conviction is not necessarily a denial
of justice; and an acquittal is not necessarily a triumph of justice, for,
to the society offended and the party wronged, it could also mean
injustice. Justice then must be rendered even-handedly to both the
accused, on one hand, and the State and offended party, on the other.

In this case, the eleven Informations in Criminal Cases Nos. 01-101102

to 01-101112 were filed with the Regional Trial Court on June 6, 2001
well within the two-year period.

In sum, this Court finds the motion for reconsideration of petitioners

meritorious.

IN THE LIGHT OF ALL THE FOREGOING, the petitioners Motion for

Reconsideration is GRANTED. The Resolution of this Court, dated May
28, 2002, is SET ASIDE. The Decision of the Court of Appeals, dated
August 24, 2001, in CA-G.R. SP No. 65034 is REVERSED. The Petition
of the Respondent with the Regional Trial Court in Civil Case No. 01-
100933 is DISMISSED for being moot and academic. The Regional Trial
Court of Quezon City, Branch 81, is DIRECTED to forthwith proceed
with Criminal Cases Nos. 01-101102 to 01-101112 with deliberate
dispatch.

No pronouncements as to costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 167571 November 25, 2008

LUIS PANAGUITON, JR., petitioner

vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G.
CAWILI, respondents.

DECISION

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals

dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119,
which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for
certiorari and his subsequent motion for reconsideration.2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money

amounting to P1,979,459.00 from petitioner. On 8 January 1993,
Cawili and his business associate, Ramon C. Tongson (Tongson),
jointly issued in favor of petitioner three (3) checks in payment of the
said loans. Significantly, all three (3) checks bore the signatures of
both Cawili and Tongson. Upon presentment for payment on 18 March
1993, the checks were dishonored, either for insufficiency of funds or
by the closure of the account. Petitioner made formal demands to pay
the amounts of the checks upon Cawili on 23 May 1995 and upon
Tongson on 26 June 1995, but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and

Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22) 5 before
the Quezon City Prosecutor's Office. During the preliminary
investigation, only Tongson appeared and filed his counter-
affidavit.6 Tongson claimed that he had been unjustly included as
party-respondent in the case since petitioner had lent money to Cawili
in the latter's personal capacity. Moreover, like petitioner, he had lent
various sums to Cawili and in appreciation of his services, he was
offered to be an officer of Roma Oil Corporation. He averred that he
was not Cawili's business associate; in fact, he himself had filed
several criminal cases against Cawili for violation of B.P. Blg. 22.
Tongson denied that he had issued the bounced checks and pointed out
that his signatures on the said checks had been falsified.

To counter these allegations, petitioner presented several documents

showing Tongson's signatures, which were purportedly the same as
the those appearing on the checks.7 He also showed a copy of an
affidavit of adverse claim wherein Tongson himself had claimed to be
Cawili's business associate.8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V.

Lara found probable cause only against Cawili and dismissed the
charges against Tongson. Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the case against Cawili was
filed before the proper court. In a letter-resolution dated 11 July
1997,10 after finding that it was possible for Tongson to co-sign the
bounced checks and that he had deliberately altered his signature in
the pleadings submitted during the preliminary investigation, Chief
State Prosecutor Jovencito R. Zuño directed the City Prosecutor of
Quezon City to conduct a reinvestigation of the case against Tongson
and to refer the questioned signatures to the National Bureau of
Investigation (NBI).

Tongson moved for the reconsideration of the resolution, but his

motion was denied for lack of merit.

On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga

(ACP Sampaga) dismissed the complaint against Tongson without
referring the matter to the NBI per the Chief State Prosecutor's
resolution. In her resolution,11 ACP Sampaga held that the case had
already prescribed pursuant to Act No. 3326, as amended,12 which
provides that violations penalized by B.P. Blg. 22 shall prescribe after
four (4) years. In this case, the four (4)-year period started on the
date the checks were dishonored, or on 20 January 1993 and 18 March
1993. The filing of the complaint before the Quezon City Prosecutor on
24 August 1995 did not interrupt the running of the prescriptive
period, as the law contemplates judicial, and not administrative
proceedings. Thus, considering that from 1993 to 1998, more than
four (4) years had already elapsed and no information had as yet been
filed against Tongson, the alleged violation of B.P. Blg. 22 imputed to
him had already prescribed.13 Moreover, ACP Sampaga stated that the
order of the Chief State Prosecutor to refer the matter to the NBI
could no longer be sanctioned under Section 3, Rule 112 of the Rules of
Criminal Procedure because the initiative should come from petitioner
himself and not the investigating prosecutor.14 Finally, ACP Sampaga
found that Tongson had no dealings with petitioner.15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary

Manuel A.J. Teehankee, dismissed the same, stating that the offense
had already prescribed pursuant to Act No. 3326.16 Petitioner filed a
motion for reconsideration of the DOJ resolution. On 3 April
2003,17 the DOJ, this time through then Undersecretary Ma.
Merceditas N. Gutierrez, ruled in his favor and declared that the
offense had not prescribed and that the filing of the complaint with
the prosecutor's office interrupted the running of the prescriptive
period citing Ingco v. Sandiganbayan.18 Thus, the Office of the City
Prosecutor of Quezon City was directed to file three (3) separate
informations against Tongson for violation of B.P. Blg. 22. 19 On 8 July
2003, the City Prosecutor's Office filed an information20 charging
petitioner with three (3) counts of violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably

acting on a motion for reconsideration filed by Tongson, ruled that the
subject offense had already prescribed and ordered "the withdrawal
of the three (3) informations for violation of B.P. Blg. 22" against
Tongson. In justifying its sudden turnabout, the DOJ explained that
Act No. 3326 applies to violations of special acts that do not provide
for a prescriptive period for the offenses thereunder. Since B.P. Blg.
22, as a special act, does not provide for the prescription of the
offense it defines and punishes, Act No. 3326 applies to it, and not Art.
90 of the Revised Penal Code which governs the prescription of
offenses penalized thereunder.23 The DOJ also cited the case
of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled that the
proceedings referred to in Act No. 3326, as amended, are judicial
proceedings, and not the one before the prosecutor's office.

Petitioner thus filed a petition for certiorari25 before the Court of

Appeals assailing the 9 August 2004 resolution of the DOJ. The
petition was dismissed by the Court of Appeals in view of petitioner's
failure to attach a proper verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003
resolution of the DOJ attached to the petition is a mere
photocopy.26 Petitioner moved for the reconsideration of the appellate
court's resolution, attaching to said motion an amended
Verification/Certification of Non-Forum Shopping.27 Still, the Court of
Appeals denied petitioner's motion, stating that subsequent
compliance with the formal requirements would not per se warrant a
reconsideration of its resolution. Besides, the Court of Appeals added,
the petition is patently without merit and the questions raised therein
are too unsubstantial to require consideration.28

In the instant petition, petitioner claims that the Court of Appeals

committed grave error in dismissing his petition on technical grounds
and in ruling that the petition before it was patently without merit
and the questions are too unsubstantial to require consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err
in dismissing the petition for non-compliance with the Rules of Court.
It also reiterates that the filing of a complaint with the Office of the
City Prosecutor of Quezon City does not interrupt the running of the
prescriptive period for violation of B.P. Blg. 22. It argues that under
B.P. Blg. 22, a special law which does not provide for its own
prescriptive period, offenses prescribe in four (4) years in accordance
with Act No. 3326.

Cawili and Tongson submitted their comment, arguing that the Court
of Appeals did not err in dismissing the petition for certiorari. They
claim that the offense of violation of B.P. Blg. 22 has already
prescribed per Act No. 3326. In addition, they claim that the long
delay, attributable to petitioner and the State, violated their
constitutional right to speedy disposition of cases.30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before

the Court of Appeals substantially complies with the rules, the
verification being intended simply to secure an assurance that the
allegations in the pleading are true and correct and not a product of
the imagination or a matter of speculation. He points out that this
Court has held in a number of cases that a deficiency in the
verification can be excused or dispensed with, the defect being neither
jurisdictional nor always fatal. 31
Indeed, the verification is merely a formal requirement intended to
secure an assurance that matters which are alleged are true and
correct–the court may simply order the correction of unverified
pleadings or act on them and waive strict compliance with the rules in
order that the ends of justice may be served, 32 as in the instant case.
In the case at bar, we find that by attaching the pertinent verification
to his motion for reconsideration, petitioner sufficiently complied
with the verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing

the petition on the ground that there was failure to attach a certified
true copy or duplicate original of the 3 April 2003 resolution of the
DOJ. We agree. A plain reading of the petition before the

Court of Appeals shows that it seeks the annulment of the DOJ

resolution dated 9 August 2004,33 a certified true copy of which was
attached as Annex "A."34 Obviously, the Court of Appeals committed a
grievous mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case

involving the violation of a municipal ordinance, in declaring that the
prescriptive period is tolled only upon filing of the information in
court. According to petitioner, what is applicable in this case is Ingco
v. Sandiganbayan,36 wherein this Court ruled that the filing of the
complaint with the fiscal's office for preliminary investigation
suspends the running of the prescriptive period. Petitioner also notes
that the Ingco case similarly involved the violation of a special law,
Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, petitioner notes.37 He argues that sustaining the
DOJ's and the Court of Appeals' pronouncements would result in grave
injustice to him since the delays in the present case were clearly
beyond his control.38

There is no question that Act No. 3326, appropriately entitled An Act

to Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin, is the law
applicable to offenses under special laws which do not provide their
own prescriptive periods. The pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless

otherwise provided in such acts, prescribe in accordance with
 the following rules: (a) x x x; (b) after four years for those
punished by imprisonment for more than one month, but less
than two years; (c) x x x

Sec. 2. Prescription shall begin to run from the day of the

commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and
punishment.

The prescription shall be interrupted when proceedings are

instituted against the guilty person, and shall begin to run again
if the proceedings are dismissed for reasons not constituting
jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg.
22. An offense under B.P. Blg. 22 merits the penalty of
imprisonment of not less than thirty (30) days but not more
than one year or by a fine, hence, under Act No. 3326, a
violation of B.P. Blg. 22 prescribes in four (4) years from the
commission of the offense or, if the same be not known at the
time, from the discovery thereof. Nevertheless, we cannot
uphold the position that only the filing of a case in court can toll
the running of the prescriptive period.

It must be pointed out that when Act No. 3326 was passed on 4
December 1926, preliminary investigation of criminal offenses was
conducted by justices of the peace, thus, the phraseology in the law,
"institution of judicial proceedings for its investigation and
punishment,"39 and the prevailing rule at the time was that once a
complaint is filed with the justice of the peace for preliminary
investigation, the prescription of the offense is halted.40

The historical perspective on the application of Act No. 3326 is

illuminating.41 Act No. 3226 was approved on 4 December 1926 at a
time when the function of conducting the preliminary investigation of
criminal offenses was vested in the justices of the peace. Thus, the
prevailing rule at the time, as shown in the cases of U.S. v.
Lazada42 and People v. Joson,43 is that the prescription of the offense is
tolled once a complaint is filed with the justice of the peace for
preliminary investigation inasmuch as the filing of the complaint
signifies the
institution of the criminal proceedings against the accused.44 These
cases were followed by our declaration in People v. Parao and
Parao45 that the first step taken in the investigation or examination of
offenses partakes the nature of a judicial proceeding which suspends
the prescription of the offense.46 Subsequently, in People v.
Olarte,47 we held that the filing of the complaint in the Municipal
Court, even if it be merely for purposes of preliminary examination or
investigation, should, and does, interrupt the period of prescription of
the criminal responsibility, even if the court where the complaint or
information is filed cannot try the case on the merits. In addition,
even if the court where the complaint or information is filed may only
proceed to investigate the case, its actuations already represent the
initial step of the proceedings against the offender,48 and hence, the
prescriptive period should be interrupted.

In Ingco v. Sandiganbayan49 and Sanrio Company Limited v.

50
Lim, which involved violations of the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A.
No. 8293), which are both special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for

preliminary investigation against the accused. In the more recent
case of Securities and Exchange Commission v. Interport Resources
Corporation, et al.,51 the Court ruled that the nature and purpose of the
investigation conducted by the Securities and Exchange Commission
on violations of the Revised Securities Act,52 another special law, is
equivalent to the preliminary investigation conducted by the DOJ in
criminal cases, and thus effectively interrupts the prescriptive period.

The following disquisition in the Interport Resources case53 is

instructive, thus:

While it may be observed that the term "judicial proceedings" in

Sec. 2 of Act No. 3326 appears before "investigation and
punishment" in the old law, with the subsequent change in set-
up whereby the investigation of the charge for purposes of
prosecution has become the exclusive function of the executive
branch, the term "proceedings" should now be understood
either executive or judicial in character: executive when it
involves the investigation phase and judicial when it refers to
the trial and judgment stage. With this clarification, any kind of
investigative proceeding instituted against the guilty person
 which may ultimately lead to his prosecution should be
sufficient to toll prescription.54

Indeed, to rule otherwise would deprive the injured party the right to
obtain vindication on account of delays that are not under his
control.55 A clear example would be this case, wherein petitioner filed
his complaint-affidavit on 24 August 1995, well within the four (4)-
year prescriptive period. He likewise timely filed his appeals and his
motions for reconsideration on the dismissal of the charges against

Tongson. He went through the proper channels, within the prescribed

periods. However, from the time petitioner filed his complaint-
affidavit with the Office of the City Prosecutor (24 August 1995) up to
the time the DOJ issued the assailed resolution, an aggregate period of
nine (9) years had elapsed. Clearly, the delay was beyond petitioner's
control. After all, he had already initiated the active prosecution of
the case as early as 24 August 1995, only to suffer setbacks because of
the DOJ's flip-flopping resolutions and its misapplication of Act No.
3326. Aggrieved parties, especially those who do not sleep on their
rights and actively pursue their causes, should not be allowed to
suffer unnecessarily further simply because of circumstances beyond
their control, like the accused's delaying tactics or the delay and
inefficiency of the investigating agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner
's filing of his complaint-affidavit before the Office of the City
Prosecutor on 24 August 1995 signified the commencement of the
proceedings for the prosecution of the accused and thus effectively
interrupted the prescriptive period for the offenses they had been
charged under B.P. Blg. 22. Moreover, since there is a definite finding
of probable cause, with the debunking of the claim of prescription
there is no longer any impediment to the filing of the information
against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of

Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and
SET ASIDE. The resolution of the Department of Justice dated 9 August
2004 is also ANNULLED and SET ASIDE. The Department of Justice is
ORDERED to REFILE the information against the petitioner.

No costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 168918 March 2, 2009

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HERMENEGILDO DUMLAO y CASTILIANO and EMILIO LA'O y
GONZALES, Respondents.

DECISION

CHICO-NAZARIO, J.:

On appeal is the Resolution1 of the Sandiganbayan in Criminal Case

No. 16699 dated 14 July 2005 which granted the Motion to
Dismiss/Quash of respondent Hermenegildo C. Dumlao and dismissed
the case against him. The Sandiganbayan likewise ordered the case
against respondent Emilio G. La’o archived. The dispositive portion of
the resolution reads:

WHEREFORE, finding the Motion to Dismiss/Quash filed by accused

Hermenegildo C. Dumlao to be meritorious this case as against him is
hereby ordered DISMISSED.

The cash bond posted by him is hereby cancelled and accused Dumlao
is allowed to withdraw the same from the Cashier’s Office of this
Court.

The hold departure order issued by this Court against herein accused
Dumlao is lifted and set aside.

The Commissioner of the Bureau of Immigration and Deportation is

ordered to cancel the name of accused Hermenegildo C. Dumlao from
the Bureau’s Hold Departure List.

This case as against Emilio La’o who is still at large is ordered

archived.2

On 19 July 1991, an Amended Information was filed before the

Sandiganbayan charging respondents Dumlao and La’o, Aber P. Canlas,
Jacobo C. Clave, Roman A. Cruz, Jr. and Fabian C. Ver with violation of
Section 3(g) of Republic Act No. 3019, as amended, otherwise known
as the Anti-Graft and Corrupt Practices Act. The case was docketed as
Criminal Case No. 16699. The accusatory portion of the information
reads:

That on or about May 10, 1982, or for sometime prior or subsequent

thereto, in Manila, Philippines, and within the jurisdiction of this
Honorable Court, the accused Hermenegildo C. Dumlao, Aber Canlas,
Jacobo C. Clave, Roman A. Cruz, Jr., and Fabian C. Ver, being then the
members of the Board of Trustees of the Government Service
Insurance System (GSIS) which is a government corporation and
therefore all public officers, conspiring and confederating together
and mutually helping one another, while in the performance of their
official functions, did then and there willfully, unlawfully and
criminally enter into contract of lease-purchase with Emilio G. La’o, a
private person whereby the GSIS agreed to sell to said Emilio G. La’o,
a GSIS acquired property consisting of three parcels of land with an
area of 821 square meters together with a 5-storey building situated
at 1203 A. Mabini St., Ermita, Manila, known as the Government
Counsel Centre for the sum of ₱2,000,000.00 with a down payment of
₱200,000.00 with the balance payable in fifteen years at 12% interest
per annum compounded yearly, with a yearly amortization of
₱264,278.37 including principal and interest granting Emilio G. La’o
the right to sub-lease the ground floor for his own account during the
period of lease, from which he collected yearly rentals in excess of the
yearly amortization which contract is manifestly and grossly
disadvantageous to the government.3

When arraigned on 9 November 2004, respondent Dumlao, with the

assistance of counsel de parte, pleaded "not guilty" to the offense
charged.4 As agreed upon by the prosecution and respondent Dumlao,
a Joint Stipulation of Facts and Admission of Exhibits was submitted
to the court on 10 January 2005.5 On the basis thereof, the court
issued on 19 January 2005 the following Pre-Trial Order:

PRE-TRIAL ORDER

The Prosecution and Accused Hermenegildo C. Dumlao, as assisted by

counsel, submitted their "JOINT STIPULATION OF FACTS AND
ADMISSION OF EXHIBITS" dated December 21, 2004, quoted
hereunder:
I. STIPULATION OF FACTS

The Prosecution and Accused Dumlao jointly stipulate on the

following:

1. That at the time material to this case, the following were

members of the Board of Trustees of the Government Service
Insurance System (GSIS):

a. Hermenegildo C. Dumlao

b. Aber P. Canlas

c. Jacobo C. Clave

d. Roman A. Cruz

e. Fabian C. Ver

f. Leonilo M. Ocampo and

g. Benjamin C. Morales;

2. That Emilio Gonzales La’o is a private person;

3. That GSIS was the owner of a property consisting of three (3)

parcels of land with an area of 821 square meters, together with
a 5-storey building situated as 1203 A. Mabini Street, Ermita,
Manila known as the Government Counsel Centre;

4. That on June 22, 1978, the GSIS entered into a Lease-Purchase

Agreement with the Republic of the Philippines through the
Office of the Government Corporate Counsel (OGCC) involving
the property described under paragraph 3 above, for a
consideration of ₱1.5 million payable in equal yearly
amortizations for a period of fifteen (15) years with zero
interest. The period should commence after the GSIS shall have
renovated the building according to the specification of the
OGCC;

5. That in accordance with the June 22, 1978 Lease-Purchase

Agreement, the 5-storey building was renovated. Thereafter, the
OGCC occupied the same;
 6. That Ferdinand E. Marcos was, at all-times material hereto,
the President of the Republic of the Philippines;

7. That then President was at all times material hereto,

legislating through the issuance of Presidential Decrees,
Executive Orders and the like;

8. That among the three Members of the Board who signed the
Minutes only accused Dumlao was charged in this case;

9. That there are only seven (7) members of the Board of

Trustees of the GSIS present during the board meeting held on
April 23, 1982;

10. Exhibit "A" and "1" entitled Agreement was signed by Luis A.
Javellana, for and in behalf of the GSIS, Felipe S. Aldaña, for and
[in] behalf of the Republic of the Philippines thru Government
Corporate Counsel, and Emilio Gonzales La’o, as buyer.

II. DOCUMENTARY EVIDENCE

The Prosecution and Accused Dumlao admitted the authenticity and

due execution of the following documentary evidence:

EXHIBITS DESCRIPTION

"A" (also Exhibit "1" for The Agreement executed by and among the
accused Dumlao GSIS, the Republic of the Philippines, through
OGCC and accused Emilio Gonzales La’o on
May 10, 1982, consisting of 11 pages;

"B" (also Exhibit "2" for
accused Dumlao)
The pertinent portion, including the signature
page, of Minutes of Meeting No. 14 of the GSIS
Board of Trustees held on April 23, 1982,
specifically containing item no. 326 regarding
the approval of the proposed Agreement by and
among the GSIS, the Republic of the Philippines
through the OGCC and accused Emilio Gonzales
La’o, consisting of 5 pages.

III. RESERVATION
The Prosecution and Accused Dumlao reserve the right to mark and
offer in evidence the documents mentioned in their respective Pre-
Trial Briefs, as well as to present the witnesses listed therein.

IV. ISSUE

Whether or not accused Dumlao is liable for violation of Section 3(g),

RA 3019.

WHEREFORE, with the submission by the parties of their Joint

Stipulation of Facts, the pre-trial is deemed terminated. Let the above-
mentioned joint stipulation as recited in this pre-trial order bind the
parties, limit the trial to matters not disposed of, and control the
course of the proceedings in this case unless modified by the Court to
prevent manifest injustice.6

On 21 February 2005, respondent Dumlao filed a Motion to

Dismiss/Quash on the ground that the facts charged do not constitute
an offense.7 He stated that the prosecution’s main thrust against him
was the alleged approval by the Government Service Insurance System
(GSIS) Board of Trustees -- of which he was a member -- of the Lease-
Purchase Agreement entered into by and among the GSIS, the Office of
the Government Corporate Counsel (OGCC) and respondent La’o. He
argued that the allegedly approved Board Resolution was not in fact
approved by the GSIS Board of Trustees, contrary to the allegations in
the information. Since the signatures of Fabian Ver, Roman Cruz, Aber
Canlas and Jacobo Clave did not appear in the minutes of the meeting
held on 23 April 1982, he said it was safe to conclude that these people
did not participate in the alleged approval of the Lease-Purchase
Agreement. This being the case, he maintained that there was no
quorum of the board to approve the supposed resolution authorizing
the sale of the GSIS property. There being no approval by the majority
of the Board of Trustees, there can be no resolution approving the
Lease-Purchase Agreement. The unapproved resolution, he added,
proved his innocence. He further contended that the person to be
charged should be Atty. Luis Javellana, who sold the subject property
to respondent La’o without the proper authority. He likewise
wondered why he alone was charged without including the other two
signatories in the minutes of the meeting held on 23 April 1982.

On 14 July 2005, the Sandiganbayan issued the assailed resolution. It

ruled:
The Court finds the motion meritorious. The minutes of the meeting
held on April 23, 1982 of the Board of Trustees of GSIS shows that the
Board failed to approve the Lease-Purchase Agreement in question. As
stipulated upon by both parties out of the seven (7) members of GSIS
Board of Trustees only three (3) members signed the minutes, the
others did not. In order to validly pass a resolution at least a majority
of four (4) members of the Board of Trustees must sign and approve
the same.1avvphi1

No amount of evidence can change the fact that Resolution dated April
23, 1982 was not validly passed by the Board of Trustees of GSIS since
it was only signed by three (3) members of the Board. Thus, it never
had the force and effect of a valid resolution and did not in effect
approve the Lease and Purchase Agreement subject matter hereof.
Therefore, the prosecution has no cause of action against herein
movant-accused Hermenegildo C. Dumlao.8

On 2 September 2005, the People of the Philippines, represented by

the Office of the Ombudsman, thru the Office of the Special
Prosecutor, filed a petition for certiorari9 under Rule 45 of the Rules
of Court seeking the reversal and setting aside of the Sandiganbayan
Resolution dismissing the case against respondent Dumlao. Petitioner
raises the following issues:

I) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE

WITH LAW AND JURISPRUDENCE WHEN IT RESOLVED TO DISMISS
CRIMINAL CASE NO. 16699 AS AGAINST RESPONDENT DUMLAO
AFTER THE PRE-TRIAL AND BEFORE THE PETITIONER COULD
PRESENT ITS WITNESSES AND FORMALLY OFFER ITS EXHIBITS.

II) WHETHER OR NOT THE SIGNATURES OF THE MAJORITY OF THE

GSIS BOARD OF TRUSTEES ARE NECESSARY ON THE MINUTES OF
MEETING NO. 14 DATED 23 APRIL 1982 TO GIVE FORCE AND EFFECT
TO RESOLUTION NO. 326 APPROVING THE PROPOSED AGREEMENT
BY AND AMONG THE GSIS, THE OGCC AND RESPONDENT EMILIO
LA’O.

III) WHETHER OR NOT THE VALIDITY OF THE CONTRACT IS AN

ESSENTIAL ELEMENT OF VIOLATION OF SECTION 3(G), RA 3019.

IV) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE

WITH LAW AND JURISPRUDENCE WHEN IT RESOLVED TO ARCHIVE
THE CASE AGAINST RESPONDENT LA’O.
On the other hand, respondent Dumlao proffers the following grounds
to support the dismissal of the case against him:

1. TO GIVE DUE COURSE TO THE OMBUDSMAN’S PETITION IS TO

PLACE DUMLAO IN DOUBLE JEOPARDY, IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS;

2. THE SANDIGANBAYAN COULD NOT BE SAID TO HAVE GRAVELY

ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION
BECAUSE IT MERELY FOLLOWED THE RULE ON PRE-TRIAL AND
DECIDED THE CASE ON THE BASIS OF THE FACTS STIPULATED IN
THE PRE-TRIAL;

3. THE FACTS AS AGREE (SIC) BY THE PROSECUTION AND

RESPONDENT DUMLAO IN THEIR PRE-TRIAL STIPULATION AND AS
APPROVED BY THE SANDIGANBAYAN SHOWED THAT HE DID NOT
COMMIT ANY CRIME; AND

4. CONTINUALLY PROSECUTING DUMLAO, TO THE EXCLUSION OF

OTHER GSIS TRUSTEES, UNDER THE CIRCUMSTANCES OBTAINING,
CONSTITUTES UNFAIR DISCRIMINATION AND VIOLATION OF HIS
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.10

Petitioner argues it was denied its right to due process when the court
a quo dismissed the case against respondent Dumlao after pre-trial
and before it could present its witnesses and formally offer its
exhibits. The court a quo deprived it of the opportunity to prove its
case – that the Resolution dated 23 April 1982 was passed by the GSIS
Board of Trustees and that the Lease-Purchase Agreement was grossly
and manifestly disadvantageous to the government.

Respondent Dumlao was charged, he being one of the members of the

GSIS Board of Trustees who allegedly approved the lease-purchase of
the subject GSIS properties consisting of three parcels of land with an
area of 821 square meters, together with a five-storey building, in
favor of respondent La’o, which lease-purchase agreement was
deemed by the Office of the Ombudsman to be grossly
disadvantageous to the government.

A review of the Motion to Dismiss/Quash filed by respondent Dumlao

reveals that the ground he invoked was that "the facts charged do not
constitute an offense." He contends that the alleged approved Board
Resolution was not approved by the GSIS Board of Trustees, contrary
to the allegation in the information. Since the signatures of four out of
the seven members of the board did not appear in the minutes of the
meeting held on 23 April 1982, there was no quorum present or no
majority that approved the supposed resolution. This being the case,
he asserts that there was no resolution adopted by the GSIS Board of
Trustees approving the sale of the subject properties to respondent
La’o.

The Sandiganbayan, basing its resolution on the Pre-trial Stipulation

entered into by the prosecution and respondent Dumlao, dismissed the
case against the latter, since it found that the GSIS Board of Trustees
failed to approve or validly pass the Lease-Purchase Agreement,
because only three out of the seven members of the Board signed the
minutes of the meeting held on 23 April 1982. It explained that, "no
amount of evidence can change the fact that the Resolution dated April
23, 1982 was not validly passed by the Board of Trustees of GSIS since
it was only signed by three members of the Board. Thus, it never had
the force and effect of a valid resolution and did not in effect approve
the Lease and Purchase Agreement subject matter hereof. Therefore,
the prosecution has no cause of action against herein movant-accused
Hermenegildo C. Dumlao."

The ground raised by respondent Dumlao in his Motion to

Quash/Dismiss is that the facts charged do not constitute an offense.
The fundamental test in determining the sufficiency of the material
averments of an information is whether the facts alleged therein,
which are hypothetically admitted, would establish the essentials
elements of the crime defined by law. Evidence aliunde, or matters
extrinsic of the Information, are not be considered.11

The elements of the crime under Section 3(g) of Republic Act No. 3019
are as follows: (1) that the accused is a public officer; (2) that he
entered into a contract or transaction on behalf of the government;
and (3) that such contract or transaction is grossly and manifestly
disadvantageous to the government.12

After examining the information, we find that the facts alleged

therein, if hypothetically admitted, will prove all the elements of
Section 3(g) as against respondent Dumlao.

It can be gathered from the resolution of the Sandiganbayan that it did

consider the ground invoked by Dumlao (that the facts charged do not
constitute an offense); otherwise, it could have denied respondent
Dumlao’s motion. From the reasoning given by the Sandiganbayan, it
is clear that it dismissed the case because of insufficiency of evidence.

Insufficiency of evidence is not one of the grounds of a Motion to

Quash. The grounds, as enumerated in Section 3, Rule 117 of the
Revised Rules of Criminal Procedure, are as follows:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the
offense charged;

(c) That the court trying the case has no jurisdiction over the
person of the accused;

(d) That the officer who filed the information had no authority
to do so;

(e) That it does not conform substantially to the prescribed

form;

(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a

legal excuse or justification; and

(i) That the accused has been previously convicted or acquitted

of the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.

Insufficiency of evidence is a ground for dismissal of an action only

after the prosecution rests its case. Section 23, Rule 119 of the Revised
Rules of Criminal Procedure provides:

Sec. 23. Demurrer to evidence. – After the prosecution rests its case,
the court may dismiss the action on the ground of insufficiency of
evidence (1) on its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to evidence filed by the
accused with or without leave of court.
In the case under consideration, the Sandiganbayan dismissed the case
against respondent for insufficiency of evidence, even without giving
the prosecution the opportunity to present its evidence. In so doing, it
violated the prosecution’s right to due process. It deprived the
prosecution of its opportunity to prosecute its case and to prove the
accused’s culpability.

It was therefore erroneous for the Sandiganbayan to dismiss the case

under the premises. Not only did it not consider the ground invoked
by respondent Dumlao; it even dismissed the case on a ground not
raised by him, and not at the appropriate time. The dismissal was thus
without basis and untimely.

On the second issue raised by petitioner, it maintains that the

Sandiganbayan erred in equating, or confusing, the minutes of the
meeting of 23 April 1982 with Resolution No. 326, which allegedly
approved the lease-purchase agreement on the GSIS properties,
entered into with respondent La’o. It argues that the Sandiganbayan
incorrectly ruled that the Resolution dated 23 April 1982 regarding the
lease-purchase of the GSIS properties was not approved, because only
three out of the seven members of the GSIS Board of Trustees signed
the minutes of the meeting of 23 April 1982.

We agree with petitioner that the Sandiganbayan erred in equating

the minutes of the meeting with the supposed resolution of the GSIS
Board of Trustees. A resolution is distinct and different from the
minutes of the meeting. A board resolution is a formal action by a
corporate board of directors or other corporate body authorizing a
particular act, transaction, or appointment.13 It is ordinarily special
and limited in its operation, applying usually to some single specific
act or affair of the corporation; or to some specific person, situation
or occasion.14 On the other hand, minutes are a brief statement not
only of what transpired at a meeting, usually of
stockholders/members or directors/trustees, but also at a meeting of
an executive committee. The minutes are usually kept in a book
specially designed for that purpose, but they may also be kept in the
form of memoranda or in any other manner in which they can be
identified as minutes of a meeting.15

The Sandiganbayan concluded that since only three members out of

seven signed the minutes of the meeting of 23 April 1982, the
resolution approving the Lease-Purchase Agreement was not passed
by the GSIS Board of Trustees. Such conclusion is erroneous. The non-
signing by the majority of the members of the GSIS Board of Trustees
of the said minutes does not necessarily mean that the supposed
resolution was not approved by the board. The signing of the minutes
by all the members of the board is not required. There is no provision
in the Corporation Code of the Philippines16 that requires that the
minutes of the meeting should be signed by all the members of the
board.

The proper custodian of the books, minutes and official records of a

corporation is usually the corporate secretary. Being the custodian of
corporate records, the corporate secretary has the duty to record and
prepare the minutes of the meeting. The signature of the corporate
secretary gives the minutes of the meeting probative value and
credibility.17 In this case, Antonio Eduardo B. Nachura,18 Deputy
Corporate Secretary, recorded, prepared and certified the correctness
of the minutes of the meeting of 23 April 1982; and the same was
confirmed by Leonilo M. Ocampo, Chairman of the GSIS Board of
Trustees. Said minutes contained the statement that the board
approved the sale of the properties, subject matter of this case, to
respondent La’o.

The minutes of the meeting of 23 April 1982 were prepared by the

Deputy Corporate Secretary of the GSIS Board of Trustees. Having
been made by a public officer, the minutes carry the presumption of
regularity in the performance of his functions and duties. Moreover,
the entries contained in the minutes are prima facie evidence of what
actually took place during the meeting, pursuant to Section 44, Rule
130 of the Revised Rule on Evidence.19 This being the case, the
Sandiganbayan erred in dismissing the case, because there was
evidence, at that time, when it dismissed the case against respondent
Dumlao. The dismissal by the lower court of the case against
respondent Dumlao was indeed premature. It should have given the
prosecution the opportunity to fully present its case and to establish
reasonable doubt on the alleged approval by the GSIS Board of
Trustees of the lease-purchase of the GSIS properties.

Petitioner likewise faults the Sandiganbayan for archiving the case

against respondent La’o, arguing that since he had already been
arraigned, it should have ordered the prosecution to adduce evidence
against him.

We agree. However, said issue has already been mooted by the death
of respondent La’o.20 The death of an accused prior to final judgment
terminates his criminal as well as civil liability based solely
thereon.21 Accordingly, the case against respondent La’o was
dismissed.22

In support of the dismissal of the case against him, respondent

Dumlao contends that to give due course to the Ombudsman’s petition
would place him in double jeopardy, in violation of his constitutional
rights. Respondent Dumlao asserts that all the elements of double
jeopardy are present in the case at bar. Citing Heirs of Tito Rillorta v.
Firme,23 he added: "[A]ssuming arguendo that the Sandiganbayan
committed an error, whatever error may have been committed by the
Sandiganbayan was merely an error of judgment and not of
jurisdiction. It did not affect the intrinsic validity of the decision. This
is the kind of error that can no longer be rectified on appeal by the
prosecution, no matter how obvious the error may be."

To raise the defense of double jeopardy, three requisites must be

present: (1) a first jeopardy must have attached prior to the second;
(2) the first jeopardy must have been validly terminated; and (3) the
second jeopardy must be for the same offense as that in the
first.24 The first jeopardy attaches attaches only (1) upon a valid
indictment; (2) before a competent court; (3) after arraignment; (4)
when a valid plea has been entered; and (5) when the defendant was
convicted or acquitted, or the case was dismissed or otherwise
terminated without the express consent of the accused.25

We do not agree. In the instant case, double jeopardy has not yet set
in. The first jeopardy has not yet attached. There is no question that
four of the five elements of legal jeopardy are present. However, we
find the last element – valid conviction, acquittal, dismissal or
termination of the case – wanting. As previously discussed, the
Sandignabayan violated the prosecution’s right to due process. The
prosecution was deprived of its opportunity to prosecute its case and
to prove the accused’s culpability. The dismissal was made in a
capricious and whimsical manner. The trial court dismissed the case
on a ground not invoked by the respondent. The Sandiganbayan
dismissed the case for insufficiency of evidence, while the ground
invoked by the respondent was that the facts charged did not
constitute an offense. The dismissal was clearly premature, because
any dismissal based on insufficiency of evidence may only be made
after the prosecution rests its case and not at any time before
then.26 A purely capricious dismissal of an information deprives the
State of a fair opportunity to prosecute and convict. It denies the
prosecution a day in court. It is void and cannot be the basis of double
jeopardy.27

The cardinal precept is that where there is a violation of basic

constitutional rights, courts are ousted of their jurisdiction. Where the
denial of the fundamental right to due process is apparent, a decision
in disregard of the right is void for lack of jurisdiction.28 In the instant
case, there was no error of judgment but a denial of due process
resulting in loss of jurisdiction. Respondent Dumlao would not be
placed in double jeopardy because, from the very beginning, the
Sandiganbayan had acted without jurisdiction. Precisely, any ruling
issued without jurisdiction is, in legal contemplation, necessarily null
and void and does not exist.29 Otherwise put, the dismissal of the case
below was invalid for lack of a fundamental prerequisite, that is, due
process. In rendering the judgment of dismissal, the trial court acted
without or in excess of jurisdiction, for a judgment which is void for
lack of due process is equivalent to excess or lack of
jurisdiction.30 This being the case, the prosecution is allowed to
appeal because it was not given its day in court.

As heretofore explained, the Sandiganbayan gravely abused its

discretion amounting to lack of jurisdiction when it dismissed the case
against respondent Dumlao based only on the stipulations made by the
parties during pre-trial. The erroneous equation of the number of
members who signed the minutes of the meeting with the number of
members who approved the alleged resolution necessarily led to the
Sandiganbayan’s faulty conclusion that there was no evidence
showing that the GSIS Board of Trustees approved the alleged Lease-
Purchase Agreement. As we have said, the minutes issued by the
Depute Corporate Secretary were enough, at that time, to set the case
for trial and to allow the prosecution to prove its case and to present
all its witnesses and evidence.

Respondent Dumlao claims that the GSIS has not been prejudiced
because it still owns the properties subject matter of this case. This
Court cannot rule on this claim, the same being a factual issue and a
defense he is raising. The appreciation of this claim is not proper in
this forum and is better left to the trial court, since the Supreme Court
is not a trier of facts.31

Respondent Dumlao maintains he was charged with conspiring with

the other GSIS Board Members in approving the Lease-Purchase
Agreement. However, of the seven members, two died, two were
acquitted and the other two were not charged. He was left alone. He
argues that since a conspiracy requires two or more persons agreeing
to commit a crime, he can no longer be charged because he was left
alone to face a charge of conspiracy.

His assumption that he can no longer be charged because he was left

alone -- since the co-conspirators have either died, have been
acquitted or were not charged -- is wrong. A conspiracy is in its nature
a joint offense. One person cannot conspire alone. The crime depends
upon the joint act or intent of two or more person. Yet, it does not
follow that one person cannot be convicted of conspiracy. As long as
the acquittal or death of a co-conspirator does not remove the basis of
a charge of conspiracy, one defendant may be found guilty of the
offense.32 In the case at bar, the absence or presence of conspiracy is
again factual in nature and involves evidentiary matters. The same is
better left ventilated before the trial court during trial, where the
parties can adduce evidence to prove or disprove its presence.

Lastly, respondent Dumlao submits that his prosecution, to the

exclusion of others, constitutes unfair discrimination and violates his
constitutional right to equal protection of the law. He says that the
dismissal of the case against his co-accused Canlas and Clave were not
appealed by the prosecution; and the two government officials who
signed the Lease-Purchase Agreement, and the two other members
(Ocampo and Morales) of the GSIS Board of Trustees who signed the
minutes were not charged.

We are not convinced that respondent Dumlao was unfairly

discriminated against and his constitutional right to equal protection
violated. It must be remembered that the manner in which the
prosecution of the case is handled is within the sound discretion of the
prosecutor, and the non-inclusion of other guilty persons is irrelevant
to the case against the accused.33 We find that there was no clear and
intentional discrimination in charging respondent Dumlao. A
discriminatory purpose is never presumed.34 It must be remembered
that it was not solely respondent who was charged, but also five of the
seven board members. If, indeed, there were discrimination,
respondent Dumlao alone could have been charged. But this was not
the case. Further, the fact that the dismissal of the case against his co-
accused Canlas and Clave was not appealed is not sufficient to cry
discrimination. This is likewise true for the non-inclusion of the two
government officials who signed the Lease-Purchase Agreement and
the other two board members. Mere speculation, unsupported by
convincing evidence, cannot establish discrimination on the part of
the prosecution and the denial to respondent of the equal protection
of the laws.

In Santos v. People,35 citing People v. Dela Piedra,36 the Court

explained:

The prosecution of one guilty person while others equally guilty are
not prosecuted, however, is not, by itself, a denial of the equal
protection of the laws. Where the official action purports to be in
conformity to the statutory classification, an erroneous or mistaken
performance of the statutory duty, although a violation of the statute,
is not without more a denial of the equal protection of the laws. The
unlawful administration by officers of a statute fair on its face,
resulting in its unequal application to those who are entitled to be
treated alike, is not a denial of equal protection unless there is shown
to be present in it an element of intentional or purposeful
discrimination. This may appear on the face of the action taken with
respect to a particular class or person, or it may only be shown by
extrinsic evidence showing a discriminatory design over another not
to be inferred from the action itself. But a discriminatory purpose is
not presumed, there must be a showing of "clear and intentional
discrimination." Appellant has failed to show that, in charging
appellant in court, that there was a "clear and intentional
discrimination" on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecution’s

sound assessment whether the evidence before it can justify a
reasonable belief that a person has committed an offense. The
presumption is that the prosecuting officers regularly performed
their duties, and this presumption can be overcome only by proof
to the contrary, not by mere speculation. Indeed, appellant has not
presented any evidence to overcome this presumption. The mere
allegation that appellant, a Cebuana, was charged with the
commission of a crime, while a Zamboangueña, the guilty party in
appellant’s eyes, was not, is insufficient to support a conclusion that
the prosecution officers denied appellant equal protection of the laws.

There is also common sense practicality in sustaining appellant’s

prosecution.

While all persons accused of crime are to be treated on a basis of

equality before the law, it does not follow that they are to be
protected in the commission of crime. It would be unconscionable,
for instance, to excuse a defendant guilty of murder because others
have murdered with impunity. The remedy for unequal enforcement
of the law in such instances does not lie in the exoneration of the
guilty at the expense of society x x x. Protection of the law will be
extended to all persons equally in the pursuit of their lawful
occupations, but no person has the right to demand protection of the
law in the commission of a crime.

Likewise, [i]f the failure of prosecutors to enforce the criminal laws

as to some persons should be converted into a defense for others
charged with crime, the result would be that the trial of the district
attorney for nonfeasance would become an issue in the trial of many
persons charged with heinous crimes and the enforcement of law
would suffer a complete breakdown. (Emphases ours.)

WHEREFORE, premises considered, the instant petition is GRANTED.

The resolution of the Sandiganbayan in Criminal Case No. 16699 dated
14 July 2005 granting the Motion to Dismiss/Quash of respondent
Hermenegildo C. Dumlao, is hereby REVERSED and SET ASIDE. The
Sandiganbayan is forthwith DIRECTED to set the case for the
reception of evidence for the prosecution.

As to respondent Emilio G. La’o, on account of his demise, the case

against him is DISMISSED.

SO ORDERED.

G.R. No. L-3008 March 19, 1951

FEDERICO SORIANO, Petitioner, vs. THE PEOPLE OF THE

PHILIPPINES, Respondent.

Felix V. Macalalag for petitioner.

First Assistance Solicitor General Roberto A. Gianzon and Acting
Solicitor Antonio Consing for respondent.

JUGO, J.:

Federico Soriano was charged on August 22, 1945, with the crime of
theft of one electric motor marked "Cyclix," with Western Electric
Company cable, and one lantern slide projector, with their
corresponding accessories, for the operation of motion pictures,
valued at P6,000, belonging to the eagle Cinema Co., Inc., represented
by its President Manager, Teodoro S.
Benedicto.chanroblesvirtualawlibrary chanrobles virtual law library

After trial he was convicted by the Court of First Instance of Iloilo and
sentenced to suffer and indeterminate penalty of from six (6) months
of arresto mayor to two (2) years, eleven (11) months and eleven (11)
days of prision correccional, with the accessory penalties of the law,
and to pay the costs. He appealed to the Court of Appeals, which
modified the above judgment and sentenced him to three (3) months
of arresto mayor, as minimum, to one (1) year, eight (8) months and
twenty-one (21) days of prision correccional, as maximum, with the
accessory penalties of the law, and to pay the costs, ordering the
lantern slide projector (Exhibit C) and the "Cyclix" motor generator
(Exhibit D) be returned to the owner, the Eagle Cinema Co.,
Inc.chanroblesvirtualawlibrary chanrobles virtual law library

The defendant filed a petition for certiorari in this Court against the
Court of Appeals. Only questions of law are raised which may be
reduced to the issue whether or not the acts of the accused, as found
by the Court of Appeals, Constitute
theft.chanroblesvirtualawlibrary chanrobles virtual law library

The Court of Appeals, in a carefully prepared opinion, held as follows:

Taking into account the respective contentions of the parties and the
evidence produced in support thereof, We are of the opinion despite
Emilia Saenz' letter (Exhibit E) where she writes to Benedicto that
Federico Soriano was only in charge of collecting the rents and of
transmitting them to her, that appellant was their representative and
duly appointed substitute administrator in her stead. It seems also
clear that, because of the disturbance caused by the war, the Eagle
Cinema Co., Inc., was indebted to the Saenz for rents due on account
of the lease; and that appellant in the exercise of the powers
conferred upon him (Exhibit 16) could have sued said debtor to
foreclose the mortgage executed by the Eagle Cinema Co., Inc., in
favor of his principals, if he could not have come to a better
understanding with Teodoro S. Benedicto. It is no longer disputed that
the properties of the Eagle Cinema Co., Inc., in the building were losts,
and that the lantern slide projector (Exhibit C) and the "Cyclix" motor
generator (Exhibit D) have been found in the house and in the
possession of the appellant after having repeatedly denied any
knowledge of the equipment and accessories of the Cine and disclined
any responsibility for their loss. Considering these facts that have
been fully established in the case, and particularly the manner and
circumstances under which said projector and generator were taken
from the building of the Eagle-Theater, can appellant be held liable for
the crime of theft of such properties?chanrobles virtual law library

Counsel for appellant contends that the latter is entitled to an

acquittal, because in the case at barchanrobles virtual law library

1. All the elements of theft are not present;chanrobles virtual law

library

2. There was no criminal intent (on the part of the

appellant);chanrobles virtual law library

3. The action of the appellant is susceptible of two interpretations,

both consistent with his innocence or guilt. Therefore, he should be
acquitted; andchanrobles virtual law library

4. The guilt of the appellant has not been proven beyond reasonable
doubt.chanroblesvirtualawlibrary chanrobles virtual law library

The crime of theft of which appellant stands charged and convicted, is

covered by the 1st paragraph of Article 308 of the Revised Penal Code,
which read as follows:

ART. 308 Who are liable for theft. - Theft is committed by any person
who, with intent of gain but without violence against or intimidation
of persons nor force upon things, shall take personal property of
another without the latter's consent.

and we agree with counsel for appellant that in order to justify a

conviction for theft the following elements must concur,
namely:chanrobles virtual law library

(a) that a chattel or personal property must have been taken or

abstracted; (b) that there be intent of gian when the taking away of
the article took place; (c) that the property stolen be owned by
another; and (d) that in the taking, neither violence of intimidation
against persons or force upon things be
employed.chanroblesvirtualawlibrary chanrobles virtual law library
With regard to the "taking," appellant contends that he did not
execute this element of theft because being an attornye-in-fact of the
heirs of Saenz, he acted for his principals, and for all intents and
purposes of the power conferred upon him, he was the principal
himself and, naturlly, he could not steal something belonging to him
under the principle that "Rei nostrae furtum facera non pos sumus".
The power of attorney (Exhibit 16) clearly empowered the appellant
"to ask, demand, sue for, recover, collect and receipt for any and all
sums of money . . . and other things of value of whatever nature or
kind," and gave him "full power to do anything requisite and
necessary to be done in the premises as fully as I (Emilia Saenz) could
if persnally preent, hereby ratifying and confirming all that my said
attorney adn substitute attorney shall lawfully do or cause to be done
by virtue hereof." But appellant fails to take two important factors
into condieration, to writ: firstly, that when he took, as he finally
admitted to have taken, the lantern slike projector and the "Cyclix"
motor generator from the Eagle-Theater, he did not really act in behal
and representation of this principals, for otherwise he would not have
repeatedly denied having taken said properties and insiunated that
they had been taken by the Japanese; and secondly, that even his
principals could not have taken and appropriated said properties for
themselves without previous and proper action in court, because no
mortgage creditor can foreclose the property mortgage to him witout
judicial proceedings. Thus, the doctrones laid down by the Supreme
Court in the case of United States vs. Reyes, (Phil., 441); People vs.
Soriano, (50 Phil., 203) Manila Mercantile Co. vs. Flores (50 Phil., 759)
and Levy Hermanos, Inc., vs. Ramirez (60 Phil., 978), on which
appellant builds up his contention, are of no bearing onte case at
bar.chanroblesvirtualawlibrary chanrobles virtual law library

Discussing further this element of "taking," it can be added that the

projector (Exhibit C) and the generator (Exhibit D) were in the
premises of the Eagle Theather, and that sometime in September,
1944, when the Japanese Ishii ceased to operate the Cine, appellant
received the keys of the building where said equipment was stored.
So, the question that remains to be determined in connection with this
point is whether appellant, having received those properties, could, for
the purposes of the crime of theft, take things already in his
possession. If is to be remembered that the apparatus, accessories and
equipment of the Cine belonged to the Eagle Cinema Co., Inc., though
they were mortgaged to appellant's principals; that the mortgage was
never foreclosed, and that neither Teodoro S. Benedicto, as President,
General Manager and majority stockholder of said corporation, nor
any other duly authorized person in this stead, had ever entrusted
said poroperties to him for the execution of the mortgage, or for any
other purpose. And even conceding for the sake of argument that with
the return of the keys and the delivery of the building to appellant, he
would have received the physical possession of the machinery therein
located, yet, the acquisition of such possesion did not carry with it the
power to exercise any act of dominion over said chattels. Among the
leading cases that can be cited to illustrate this phase of the problem,
we quote the following from Question No. XXXI of Viada (vol. 3, page
433, 4th ed.):

"Is the shepherd, who takes away and converts to his own use several
head of cattle under his care, guilty of the crime of estafa within case
No. 5 of articl 548, or of theft, defined and punished in article 533,
No. 2, of the Spanish Penal Code" - The Supreme Court has decided
that it was this latter and more serious crime that was committed:
"Considering that the crime of theft is committed when one, with
intent of gain, and without using violence or intimidation against
persons, or force upon things, takes away personal property of
another without the owner's consent; and in the present case Manuel
Diaz Castilla undoubtedly commited the crime defined, for, with intent
of gian, he took away two bucks and a female goat, against the will of
his mater, the owner of said animals, which were under his care as
shepherd; Considering that, in holding that the crime committed was
that of theft and not of estafa, as claimed by the appellant, ignorant of
the true elements which constitute the latter crime, the lower court
did not commit any error of law, nor violate any legal provision, as
contended by defendant's counsel in support of this appeal." (Decision
rendered on June 23, 1886, published in the Gazette of September 16,
p. 189.)

And this is so, because as stated in the case of United States vs. Nieves
de Vera, (43 Phil. 1000):

When the delivery of a chattel or cattle has not the effect of

transferring the juridicial possession thereof, or title thereto, it is
presumed that the possession of, and title to, the thing so delivered
remains in the owner; and the act of disposing thereof with intent of
gain and without the consent of the owner constitutes the crime of
theft.

As to the element of "intent of gain," We further declare that

whenever a cattle or other personal property vlaue is abstracted
witout the consent of the owner, an dthe evidence on record does not
show any other reason for the abstraction, it is to be presumed and
logically inferred that such act was motivated by an intent of gain.
(Decision, pp. 7-12.)

The petitioner shields himself behind the power-of-attorney, Exhibit

16, granted to him by Emilia Saenz, the owner of the building which
was rented by the Eagle Cinema Co., Inc., the essential part of which
reads as follows:

To ask, take, sue for, recover, collect and receive any and all sums of
money, debts, dues, accounts, interests, demands, and other things of
value of whatsover nature or kind as may be or hereafter be due,
owing, payable or belonging to the community entrusted to me (Emilia
Saenz) in the City of Iloilo an dto have, use, and take any and all
lawful ways and means for the recovery thereof by suit, attachement
or otherwise, and to compromise, settle and agree for the same;
(Decision, pp. 5-6.)

It is clear tha tsaid power of attorney did not authorize the petitioner
to take away the projector and the generator, hiding them in his house
and denying to the owner and the police authorities that he had them
in his possessions, which was an illegal act, not covered by his power-
of-attorney. He was authrorized only to adk, take, sue for, recover,
collect, etc., sums of money, debts, dues, accounts and other things
which were or might thereafter be due, etc., to his principal Emilia
Saenz. This authority referred mainly to the collection of the rents of
the building rented by the Eagle Cinema Co., Inc. The projector and
the generator were not due or owing to Emilia Saenz. It is not to be
supposed that Saenz herself would have denied the possession of
those articles. It is was the purpose of the petitioner only to protect
those instruments from looting, there is o reason why he should have
concealed them from the owner and denied having
them.chanroblesvirtualawlibrary chanrobles virtual law library

Even thogh the equipment, including those articles, were mortgaged

to Sanez to guaantee the payment of the rents due on the building, yet
there had been no faoreclosure and neither she nor the petitioner had
the authority to take away and conceal those articles from teh owner
or the police authorities. The Eagle Cinema Co., Inc., had the right to
possess said articles.chanroblesvirtualawlibrary chanrobles virtual
law library
With regard to the element of taking or asportation, there is not doubt
that it existed, notwithstanding that the peititioner had been
entreusted with the keys of the building werhe they were kept. This
point has been settled by Viada, numerious decisions of the Supreme
court of Spain and of the Philippines, some of which authorities are
cited above.chanroblesvirtualawlibrary chanrobles virtual law library

As to the element of intent, it is clear that whent the petitioner caried

away and concealed from teh owner and the police authorities the
above-mentioned articles, he acted with intent of gian. Intent is a
mental state, the existence of which is shown by the overt acts of a
person, which in the present case unmistakably point to that
intent.chanroblesvirtualawlibrary chanrobles virtual law library

In view of the foregoing, the petition for the writ of certiorari is

denied, with costs against the petitioner. so
ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Moran, C.J., Feria, Pablo, Bengzon, Padilla, Tuason, Montemayor and

Reyes, JJ., concur.

[G.R. No. 185230, June 01 : 2011]

JOSEPH C. CEREZO,PETITIONER, VS. PEOPLE OF THE

PHILIPPINES, JULIET YANEZA, PABLO ABUNDA, JR., AND VICENTE
AFULUGENCIA, RESPONDENTS.

DECISION

NACHURA, J.:

This petition for review on certiorari under Rule 45 of the Rules of

Court seeks to annul the July 11, 2008 Decision[1] and the November 4,
2008 Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No.
99088, which reversed and set aside the October 24, 2006[3] and the
February 26, 2007[4]Orders of the Regional Trial Court (RTC) of
Quezon City, Branch 92.

The RTC Orders revived Criminal Case No. Q-03-115490, entitled

“People of the Philippines v. Juliet Yaneza, Pablo Abunda, Jr., Oscar
Mapalo and Vicente Afulugencia,” after the same was dismissed in
an earlier Order.

The Facts

On September 12, 2002, petitioner Joseph Cerezo filed a complaint for

libel against respondents Juliet Yaneza, Pablo Abunda, Jr., and Vicente
Afulugencia (respondents), as well as Oscar Mapalo
(Mapalo).[5] Finding probable cause to indict respondents,[6] the
Quezon City Prosecutor’s Office (OP-QC) filed the corresponding
Information against them on February 18, 2003 before the RTC.[7]

Respondents thereafter filed a Motion for Reconsideration and/or

Motion to Re-evaluate Prosecution’s Evidence before the OP-QC.[8]

In its resolution dated November 20, 2003, the OP-QC reversed its
earlier finding and recommended the withdrawal of the
Information.[9] Consequently, a Motion to Dismiss and Withdraw
Information was filed before the RTC on December 3, 2003. During
the intervening period, specifically on November 24, 2003,
respondents were arraigned. All of them entered a “not guilty”
plea.[10]

In deference to the prosecutor’s last resolution, the RTC ordered

the criminal case dismissed in its Order dated March 17, 2004, viz.:

Settled is the rule that the determination of the persons to be

prosecuted rests primarily with the Public Prosecutor who is vested
with quasi-judicial discretion in the discharge of this function. Being
vested with such power, he can reconsider his own resolution if he
finds that there is reasonable ground to do so. x x x.

More so, the Court cannot interfere with the Public Prosecutor’s
discretion to determine probable cause or the propriety of pursuing or
not a criminal case when the case is not yet filed in Court, as a general
rule. However, if the same criminal case has been filed in Court
already, the Public Prosecutor can still interfere with it subject to the
approval of the Court. In the case of Republic vs. Sunga, et al., the
Supreme Court held that while it has been settled in the case of
Crespo vs. Mogul that the trial court is the sole judge on whether a
criminal case should be dismissed after the complaint or information
has been filed in court, nonetheless any motion of the offended party
for the dismissal of the criminal case, even if without objection of the
accused, should first be referred to the prosecuting fiscal and only
after hearing should the court exercise its exclusive authority to
dismiss or continue with the prosecution of the case. The Court,
therefore, after hearing and conferring with the fiscal, can dismiss the
case if convinced that there is [no] reason to continue with the
prosecution [of] the same. As in this case, the Court finds merit [in]
the motion of the Public Prosecutor.[11]

Aggrieved, petitioner moved for reconsideration of the said Order,

arguing that the November 20, 2003 OP-QC resolution has not yet
attained finality, considering that the same was the subject of a
Petition for Review filed before the Department of Justice
(DOJ).[12] The RTC deferred action on the said motion to await the
resolution of the DOJ.[13]

On June 26, 2006, the Secretary of Justice promulgated his resolution

reversing and setting aside the OP-QC’s November 20, 2003
resolution, and directing the latter to refile the earlier Information for
libel.[14]

On October 24, 2006, the RTC issued its first assailed Order granting
petitioner’s motion for reconsideration, conformably with the
resolution of the DOJ Secretary, thus:

Considering the findings of the Department of Justice reversing the

resolution of the City Prosecutor, the Court gives favorable action to
the Motion for Reconsideration. In the same manner as discussed in
arriving at its assailed order dated 17 March 2004, the Court gives
more leeway to the Public Prosecutor in determining whether it has to
continue or stop prosecuting a case. While the City Prosecutor has
previously decided not to pursue further the case, the Secretary of
Justice, however, through its resolution on the Petition for Review did
not agree with him.

The Court disagrees with the argument raised by the accused that
double jeopardy sets in to the picture. The order of dismissal as well
as the withdrawal of the Information was not yet final because of the
timely filing of the Motion for Reconsideration. The Court[,] therefore,
can still set aside its order. Moreover, there is no refiling of the case
nor the filing of a new one. The case filed remains the same and the
order of dismissal was merely vacated because the Court finds the
Motion for Reconsideration meritorious.
WHEREFORE, finding the Motion for Reconsideration meritorious, the
Order dated 17 March 2004 is hereby RECONSIDERED and SET ASIDE.

Let the arraignment of accused Oscar Mapalo and pre-trial [of] the
other accused be set on 06 December 2006 at 8:30 in the morning.

SO ORDERED.[15]

Respondents moved for reconsideration, but the motion was denied in

the RTC’s second assailed Order dated February 26, 2007.[16]

Relentless, respondents elevated their predicament to the CA through

a Petition for Certiorari under Rule 65 of the Rules of Court, arguing in
the main that the RTC Orders violated their constitutional right
against double jeopardy.

Ruling of the CA

The appellate court found the RTC to have gravely abused its
discretion in ordering the reinstatement of the case. The CA annulled
the impugned RTC Orders, ruling that all the elements of double
jeopardy exist. There was a valid Information sufficient in form and
substance filed before a court of competent jurisdiction to which
respondents had pleaded, and that the termination of the case was not
expressly consented to by respondents; hence, the same could not be
revived or refiled without transgressing respondents’ right against
double jeopardy.

The CA further found that the DOJ Secretary improperly took

cognizance of the Petition for Review because DOJ Department Order
No. 223 mandates that no appeal shall be entertained if the accused
has already been arraigned or, if the arraignment took place during
the pendency of the appeal, the same shall be dismissed.[17]

Petitioner interposed the instant appeal when his motion for

reconsideration of the CA Decision was denied.[18]

The Issues

Petitioner ascribes the following errors to the CA:

a. The Honorable Court of Appeals erred in finding that there was
Double Jeopardy, specifically on the alleged existence of the requisites
to constitute Double Jeopardy;

b. The Honorable Court of Appeals failed to consider the fact that

there was NO refiling of the case nor the filing of a new one in
arriving [at] its conclusion that Double Jeopardy sets in to the picture;

c. The Honorable Court of Appeals erred in finding that there was 1.) a
valid termination of the case on the basis of the Order of the Trial
Court dated 17 March 2004, and allegedly 2.) without the express
consent of the respondents.[19]

The assigned errors will be subsumed into this issue:

Whether there was a valid termination of the case so as to usher in the

impregnable wall of double jeopardy.

Our Ruling

The petition is impressed with merit.

Well-entrenched is the rule that once a case is filed with the court,
any disposition of it rests on the sound discretion of the court. In thus
resolving a motion to dismiss a case or to withdraw an Information,
the trial court should not rely solely and merely on the findings of the
public prosecutor or the Secretary of Justice.[20] It is the court’s
bounden duty to assess independently the merits of the motion, and
this assessment must be embodied in a written order disposing of the
motion.[21] While the recommendation of the prosecutor or the ruling
of the Secretary of Justice is persuasive, it is not binding on courts.

In this case, it is obvious from the March 17, 2004 Order of the RTC,
dismissing the criminal case, that the RTC judge failed to make his
own determination of whether or not there was a prima facie case to
hold respondents for trial. He failed to make an independent
evaluation or assessment of the merits of the case. The RTC judge
blindly relied on the manifestation and recommendation of the
prosecutor when he should have been more circumspect and judicious
in resolving the Motion to Dismiss and Withdraw Information
especially so when the prosecution appeared to be uncertain,
undecided, and irresolute on whether to indict respondents.
The same holds true with respect to the October 24, 2006 Order,
which reinstated the case. The RTC judge failed to make a separate
evaluation and merely awaited the resolution of the DOJ Secretary.
This is evident from the general tenor of the Order and highlighted in
the following portion thereof:

As discussed during the hearing of the Motion for Reconsideration, the

Court will resolve it depending on the outcome of the Petition for
Review. Considering the findings of the Department of Justice
reversing the resolution of the City Prosecutor, the Court gives
favorable action to the Motion for Reconsideration.[22]

By relying solely on the manifestation of the public prosecutor and the

resolution of the DOJ Secretary, the trial court abdicated its judicial
power and refused to perform a positive duty enjoined by law. The
said Orders were thus stained with grave abuse of discretion and
violated the complainant’s right to due process. They were void,
had no legal standing, and produced no effect whatsoever.[23]

This Court must therefore remand the case to the RTC, so that the
latter can rule on the merits of the case to determine if a prima
facie case exists and consequently resolve the Motion to Dismiss and
Withdraw Information anew.

It is beyond cavil that double jeopardy did not set in. Double jeopardy
exists when the following requisites are present: (1) a first jeopardy
attached prior to the second; (2) the first jeopardy has been validly
terminated; and (3) a second jeopardy is for the same offense as in the
first. A first jeopardy attaches only (a) after a valid indictment; (b)
before a competent court; (c) after arraignment; (d) when a valid plea
has been entered; and (e) when the accused has been acquitted or
convicted, or the case dismissed or otherwise terminated without
his express consent.[24]

Since we have held that the March 17, 2004 Order granting the motion
to dismiss was committed with grave abuse of discretion, then
respondents were not acquitted nor was there a valid and legal
dismissal or termination of the case. Ergo, the fifth requisite which
requires the conviction and acquittal of the accused, or the dismissal
of the case without the approval of the accused, was not met. Thus,
double jeopardy has not set in.
WHEREFORE , the petition is hereby GIVEN DUE COURSE, and the
assailed July 11, 2008 Decision and the November 4, 2008 Resolution
of the Court of Appeals in CA-G.R. SP No. 99088, and the October 24,
2006 and the February 26, 2007 Orders of the Regional Trial Court of
Quezon City, Branch 92, are hereby ANNULLED and SET ASIDE. The
case is REMANDED to the Quezon City RTC, Branch 92, for evaluation
on whether probable cause exists to hold respondents for trial.

No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 183994 June 30, 2014

WILLIAM CO a.k.a. XU QUING HE, Petitioner,

vs.
NEW PROSPERITY PLASTIC PRODUCTS, represented by ELIZABETH
UY,1 Respondent.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari under Rule 45 of the

1997 Revised Rules on Civil Procedure (Rules) are the April 30,
20082 and August 1, 20083 Resolutions of the Court of Appeals (CA) in
CA-G.R. SP No. 102975, which dismissed the petition and denied the
motion for reconsideration, respectively. In effect, the CA affirmed the
January 28, 2008 Decision4 of the Regional Trial Court (RTC) Branch
121 of Caloocan City, which annulled and set aside the Orders dated
September 4, 20065 and November 16, 20066 of the Metropolitan Trial
Court (MeTC), Branch 50 of Caloocan City, permanently dismissing
Criminal Case Nos. 206655-59, 206661-77 and 209634.

The facts are simple and undisputed:

Respondent New Prosperity Plastic Products, represented by Elizabeth
Uy (Uy), is the private complainant in Criminal Case Nos. 206655-59,
206661-77 and 209634 for Violation of Batas Pambansa (B.P.) Bilang
22 filed against petitioner William Co (Co), which were raffled to the
MeTC Branch. 49 of Caloocan City. In the absence of Uy and the
private counsel, the cases were provisionally dismissed on June 9,
2003 in open court pursuant to Section 8, Rule 117 of the Revised
Rules of Criminal Procedure (Rules).7 Uy received a copy of the June9,
2003 Order on July 2, 2003, while her counsel-of-record received a
copy a day after.8 On July 2, 2004, Uy, through counsel, filed a Motion
to Revive the Criminal Cases.9 Hon. Belen B. Ortiz, then Presiding
Judge of the MeTC Branch 49, granted the motion on October 14, 2004
and denied Co’s motion for reconsideration.10 When Co moved for
recusation, Judge Ortiz inhibited herself from handling the criminal
cases per Order dated January 10, 2005.11 The cases were, thereafter,
raffled to the MeTC Branch 50 of Caloocan City. On March 17, 2005,
Co filed a petition for certiorari and prohibition with prayer for the
issuance of a temporary restraining order (TRO)/writ of preliminary
injunction (WPI) before the RTC of Caloocan City challenging the
revival of the criminal cases.12 It was, however, dismissed for lack of
merit on May 23, 2005.13 Co’s motion for reconsideration was,
subsequently, denied on December 16, 2005.14 Co then filed a petition
for review on certiorari under Rule 45 before the Supreme Court,
which was docketed as G.R. No. 171096.15 We dismissed the petition
per Resolution dated February 13, 2006.16 There being no motion for
reconsideration filed, the dismissal became final and executory on
March 20, 2006.17

Before the MeTC Branch 50 where Criminal Case Nos. 206655-59,

206661-77 and 209634 were re-raffled after the inhibition of Judge
Ortiz, Co filed a "Motion for Permanent Dismissal" on July 13,
2006.18 Uy opposed the motion, contending that the motion raised the
same issues already resolved with finality by this Court in G.R. No.
171096.19 In spite of this, Judge Esteban V. Gonzaga issued an Order
dated September 4, 2006 granting Co’s motion.20 When the court
subsequently denied Uy’s motion for reconsideration on November 16,
2006,21 Uy filed a petition for certiorari before the RTC of Caloocan
City. On January 28, 2008, Hon. Judge Adoracion G. Angeles of the
RTC Branch 121 acted favorably on the petition, annulling and setting
aside the Orders dated September 4, 2006 and November 16, 2006
and directing the MeTC Branch 50 to proceed with the trial of the
criminal cases.22 Co then filed a petition for certiorari before the CA,
which, as aforesaid, dismissed the petition and denied his motion for
reconsideration. Hence, this present petition with prayer for
TRO/WPI.

According to Co, the following issues need to be resolved in this

petition:

1. WHETHER OR NOT THE DISMISSAL OF THE CRIMINAL CASES

AGAINST PETITIONER ONTHE GROUND OF DENIAL OF HIS
RIGHT TO SPEEDY TRIAL CONSTITUTES FINAL DISMISSAL OF
THESE CASES;

2. WHETHER OR NOT THE METC ACTED WITH JURISDICTION

IN REVIVING THE CRIMINAL CASES AGAINST PETITIONER
WHICH WERE DISMISSED ON THE GROUND OF DENIAL OF HIS
RIGHT TO SPEEDY TRIAL; and

3. ASSUMING POR GRATIA ARGUMENTITHE CASES WERE ONLY

PROVISIONALLY DISMISSED:

a. WHETHER THE ONE-YEAR TIMEBAR OF THEIR REVIVAL

IS COMPUTED FROM ISSUANCE OF THE ORDER OF
PROVISIONAL DISMISSAL;

b. WHETHER THE ACTUAL NUMBER OF DAYS IN A YEAR

IS THE BASIS FOR COMPUTING THE ONE-YEAR TIME BAR;

c. WHETHER THE PROVISIONALLY DISMISSED CASES

AGAINST PETITIONER ARE REVIVED IPSO FACTO BY THE
FILING OF MOTION TO REVIVE THESE CASES.23

Co argues that the June 9, 2003 Order provisionally dismissing

Criminal Case Nos. 206655-59, 206661-77 and 209634 should be
considered as a final dismissal on the ground that his right to speedy
trial was denied. He reasons out that from his arraignment on March
4, 2002 until the initial trial on June 9, 2003, there was already a
"vexatious, capricious and oppressive" delay, which is in violation of
Section 6 of Republic Act 8493 (Speedy Trial Act of 1998)24 and
Section 2, Paragraph 2, Rule 119 of the Revised Rules of Criminal
Procedure25 mandating that the entire trial period should not exceed
180 days from the first day of trial. As the dismissal is deemed final,
Co contends that the MeTC lost its jurisdiction over the cases and
cannot reacquire jurisdiction over the same based on a mere motion
because its revival would already put him in double jeopardy.
Assuming that the criminal cases were only provisionally dismissed,
Co further posits that such dismissal became permanent one year
after the issuance of the June 9, 2003 Order, not after notice to the
offended party. He also insists that both the filing of the motion to
revive and the trial court’s issuance of the order granting the revival
must be within the one-year period. Lastly, even assuming that the
one-year period to revive the criminal cases started on July 2, 2003
when Uy received the June 9, 2003 Order, Co asserts that the motion
was filed one day late since year 2004 was a leap year.

The petition is unmeritorious.

At the outset, it must be noted that the issues raised in this petition
were also the meat of the controversy in Co’s previous petition in G.R.
No. 171096, which We dismissed per Resolution dated February 13,
2006. Such dismissal became final and executory on March 20, 2006.
While the first petition was dismissed mainly due to procedural
infirmities, this Court nonetheless stated therein that "[i]n any event,
the petition lacks sufficient showing that respondent court had
committed any reversible error in the questioned judgment to warrant
the exercise by this Court of its discretionary appellate jurisdiction in
this case." Hence, upon the finality of Our February 13, 2006
Resolution in G.R. No. 171096, the same already constitutes as res
judicata between the parties. On this ground alone, this petition
should have been dismissed outright.

Even if We are to squarely resolve the issues repeatedly raised in the

present petition, Co’s arguments are nonetheless untenable on the
grounds as follows:

First, Co’s charge that his right to a speedy trial was violated is
baseless. Obviously, he failed to show any evidence that the alleged
"vexatious, capricious and oppressive" delay in the trial was attended
with malice or that the same was made without good cause or
justifiable motive on the part of the prosecution. This Court has
emphasized that "‘speedy trial’ is a relative term and necessarily a
flexible concept."26 In determining whether the accused's right to
speedy trial was violated, the delay should be considered in view of
the entirety of the proceedings.27 The factors to balance are the
following: (a) duration of the delay; (b) reason therefor; (c) assertion
of the right or failure to assert it; and (d) prejudice caused by such
delay.28 Surely, mere mathematical reckoning of the time involved
would not suffice as the realities of everyday life must be regarded in
judicial proceedings which, after all, do not exist in a vacuum, and
that particular regard must be given to the facts and circumstances
peculiar to each case.29 "While the Court recognizes the accused's
right to speedy trial and adheres to a policy of speedy administration
of justice, we cannot deprive the State of a reasonable opportunity to
fairly prosecute criminals. Unjustified postponements which prolong
the trial for an unreasonable length of time are what offend the right
of the accused to speedy trial."30

Second, Co is burdened to establish the essential requisites of the first

paragraph of Section 8, Rule 117 of the Rules, which are conditions
sine qua non to the application of the time-bar in the second
paragraph thereof, to wit: (1) the prosecution with the express
conformity of the accused or the accused moves for a provisional (sin
perjuicio) dismissal of the case; or both the prosecution and the
accused move for a provisional dismissal of the case; (2) the offended
party is notified of the motion for a provisional dismissal of the case;
(3) the court issues an order granting the motion and dismissing the
case provisionally; and (4) the public prosecutor is served with a copy
of the order of provisional dismissal of the case.31 In this case, it is
apparent from the records that there is no notice of any motion for the
provisional dismissal of Criminal Cases Nos. 206655-59, 206661-77
and 209634 or of the hearing thereon which was served on the private
complainant at least three days before said hearing as mandated by
Section 4, Rule 15 of the Rules.32 The fact is that it was only in open
court that Co moved for provisional dismissal "considering that, as
per records, complainant had not shown any interest to pursue her
complaint."33 The importance of a prior notice to the offended party of
a motion for provisional dismissal is aptly explained in People v.
Lacson:34

x x x It must be borne in mind that in crimes involving private

interests, the new rule requires that the offended party or parties or
the heirs of the victims must be given adequate a priori notice of any
motion for the provisional dismissal of the criminal case. Such notice
may be served on the offended party or the heirs of the victim through
the private prosecutor, if there is one, or through the public
prosecutor who in turn must relay the notice to the offended party or
the heirs of the victim to enable them to confer with him before the
hearing or appear in court during the hearing. The proof of such
service must be shown during the hearing on the motion, otherwise,
the requirement of the new rule will become illusory. Such notice will
enable the offended party or the heirs of the victim the opportunity to
seasonably and effectively comment on or object to the motion on
valid grounds, including: (a) the collusion between the prosecution
and the accused for the provisional dismissal of a criminal case
thereby depriving the State of its right to due process; (b) attempts to
make witnesses unavailable; or (c) the provisional dismissal of the
case with the consequent release of the accused from detention would
enable him to threaten and kill the offended party or the other
prosecution witnesses or flee from Philippine jurisdiction, provide
opportunity for the destruction or loss of the prosecution’s physical
and other evidence and prejudice the rights of the offended party to
recover on the civil liability of the accused by his concealment or
furtive disposition of his property or the consequent lifting of the writ
of preliminary attachment against his property.35

Third, there is evident want of jurisprudential support on Co’s

supposition that the dismissal of the cases became permanent one
year after the issuance of the June 9, 2003 Order and not after notice
to the offended party. When the Rules states that the provisional
dismissal shall become permanent one year after the issuance of the
order temporarily dismissing the case, it should not be literally
interpreted as such. Of course, there is a vital need to satisfy the basic
requirements of due process; thus, said in one case:

Although the second paragraph of the new rule states that the order of
dismissal shall become permanent one year after the issuance thereof
without the case having been revived, the provision should be
construed to mean that the order of dismissal shall become permanent
one year after service of the order of dismissal on the public
prosecutor who has control of the prosecution without the criminal
case having been revived. The public prosecutor cannot be expected to
comply with the timeline unless he is served with a copy of the order
of dismissal.36

We hasten to add though that if the offended party is represented by a

private counsel the better rule is that the reckoning period should
commence to run from the time such private counsel was actually
notified of the order of provisional dismissal. When a party is
represented by a counsel, notices of all kinds emanating from the
court should be sent to the latter at his/her given address.37 Section 2,
Rule 13 of the Rules analogously provides that if any party has
appeared by counsel, service upon the former shall be made upon the
latter.38
Fourth, the contention that both the filing of the motion to revive the
case and the court order reviving it must be made prior to the
expiration of the one-year period is unsustainable. Such interpretation
is not found in the Rules. Moreover, to permit otherwise would
definitely put the offended party at the mercy of the trial court, which
may wittingly or unwittingly not comply. Judicial notice must be taken
of the fact that most, if not all, of our trial court judges have to deal
with clogged dockets in addition to their administrative duties and
functions. Hence, they could not be expected to act at all times on all
pending decisions, incidents, and related matters within the
prescribed period of time. It is likewise possible that some of them,
motivated by ill-will or malice, may simply exercise their whims and
caprices in not issuing the order of revival on time.

Fifth, the fact that year 2004 was a leap year is inconsequential to
determine the timeliness of Uy’s motion to revive the criminal cases.
What is material instead is Co’s categorical admission that Uy is
represented by a private counsel who only received a copy of the June
9, 2003 Order on July 3, 2003. Therefore, the motion was not
belatedly filed on July 2, 2004. Since the period for filing a motion to
revive is reckoned from the private counsel's receipt of the order of
provisional dismissal, it necessarily follows that the reckoning period
for the permanent dismissal is likewise the private counsel's date of
receipt of the order of provisional dismissal.

And Sixth, granting for the sake of argument that this Court should
take into account 2004 as a leap year and that the one-year period to
revive the case should be reckoned from the date of receipt of the
order of provisional dismissal by Uy, We still hold that the motion to
revive the criminal cases against Co was timely filed. A year is
equivalent to 365 days regardless of whether it is a regular year or a
leap year.39 Equally so, under the Administrative Code of 1987, a
yearis composed of 12 calendar months. The number of days is
irrelevant. This was our ruling in Commissioner of Internal Revenue
v. Primetown Property Group, Inc.,40 which was subsequently
reiterated in Commissioner of Internal Revenue v. Aichi Forging
Company of Asia, Inc.,41 thus:

x x x [In] 1987, EO 292 or the Administrative Code of 1987 was

enacted. Section 31, Chapter VIII, Book I thereof provides:

Sec. 31.Legal Periods.- "Year" shall be understood to be twelve

calendar months; "month" of thirty days, unless it refers to a specific
calendar month in which case it shall be computed according to the
number of days the specific month contains; "day", to a day of twenty-
four hours and; "night" from sunrise to sunset. (emphasis supplied)

A calendar month is "a month designated in the calendar without

regard to the number of days it may contain." It is the "period of time
running from the beginning of a certain numbered day up to, but not
including, the corresponding numbered day of the next month, and if
there is not a sufficient number of days in the next month, then up to
and including the last day of that month." To illustrate, one calendar
month from December 31, 2007 will be from January 1, 2008 to
January 31, 2008; one calendar month from January 31, 2008 will be
from February 1, 2008 until February 29, 2008.42

Applying Section 31, Chapter VIII, Book I of the Administrative Code of

1987 to this case, the one-year period reckoned from the time Uy
received the order of dismissal on July2, 2003 consisted of 24
calendar months, computed as follows:

1st calendar month July 3, 2003 to August 2, 2003

2nd calendar month August 3, 2003 to September 2, 2003

3rd calendar month September 3, 2003 to October 2, 2003

4th calendar month October 3, 2003 to November 2, 2003

5th calendar month November 3, 2003 to December 2, 2003

6th calendar month December 3, 2003 to January 2, 2004

7th calendar month January 3, 2004 to February 2, 2004

8th calendar month February 3, 2004 to March 2, 2004

9th calendar month March 3, 2004 to April 2, 2004

10th calendar month April 3, 2004 to May 2, 2004

11th calendar month May 3, 2004 to June 2, 2004

12th calendar month June 3, 2004 to July 2, 2004

In the end, We find it hard to disregard the thought that the instant
petition was filed as a dilatory tactic to prosecute Criminal Case Nos.
206655-59, 206661-77 and 209634. As correctly pointed out by Uy
since the time when the "Motion for Permanent Dismissal" was filed,
the issues raised herein were already resolved with finality by this
Court in G.R. No. 171096. Verily, Co, acting through the guidance and
advice of his counsel, Atty. Oscar C. Maglaque, adopted a worthless
and vexatious legal maneuver for no purpose other than to delay the
trial court proceedings. It appears that Atty. Maglaque’s conduct
contravened the Code of Professional Responsibility which enjoins
lawyers to observe the rules of procedure and not to misuse them to
defeat the ends of justice (Rule 10.03, Canon 10) as well as not to
unduly delay a case or misuse court processes (Rule 12.04, Canon 12).
The Lawyer’s Oath also upholds in particular:

x x x I will not wittingly or willingly promote or sue any groundless,

false or unlawful suit, nor give aid nor consent to the same; I will
delay no man for money or malice, and will conduct myself as a
lawyer according to the best of my knowledge and discretion with all
good fidelity as well to the courts as to my clients x x x.1âwphi1

This Court has repeatedly impressed upon counsels that the need for
the prompt termination of litigation is essential to an effective and
efficient administration of justice. In Spouses Aguilar v. Manila
Banking Corporation,43 We said:

The Court reminds petitioners' counsel of the duty of lawyers who, as

officers of the court, must see to it that the orderly administration of
justice must not be unduly impeded. It is the duty of a counsel to
advise his client, ordinarily a layman on the intricacies and vagaries
of the law, on the merit or lack of merit of his case. If he finds that his
client's cause is defenseless, then it is his bounden duty to advise the
latter to acquiesce and submit, rather than traverse the
incontrovertible. A lawyer must resist the whims and caprices of his
client, and temper his client's propensity to litigate. A lawyer’s oath to
uphold the cause of justice is superior to his duty to his client; its
primacy is indisputable.44

WHEREFORE, premises considered, the Petition is DENIED. The April

30, 2008 and August 1, 2008 Resolutions of the Court of Appeals,
respectively, in CA-G.R. SP No. 102975, which affirmed the January
28, 2008 Decision of the Regional Trial Court, Branch 121 of Caloocan
City, annulling and setting aside the Orders dated September 4, 2006
and November 16, 2006 of the Metropolitan Trial Court, Branch 50 of
Caloocan City that permanently dismissed Criminal Case Nos. 206655-
59, 206661-77 and 209634, are hereby AFFIRMED. Costs of suit to be
paid by the petitioner.

The Commission on Bar Discipline-Integrated Bar of the Philippines is

DIRECTED to investigate Atty. Oscar C. Maglaque for his acts that
appear to have violated the Lawyer's Oath, the Code of Professional
Responsibility, and the Rule on Forum Shopping.

SO ORDERED.

DIOSDADO M. PERALTA*

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 197546 March 23, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BAYANI DE LEON, ANTONIO DE LEON, DANILO DE LEON and
YOYONG DE LEON, Accused-Appellants.

DECISION

PEREZ, J.:

For review is the conviction for the crime of Murder of accused-

appellants BAYANI DE LEON (Bayani), ANTONIO DE LEON (Antonio),
DANILO DE LEON (Danilo), and YOYONG DE LEON (Yoyong) by the
Regional Trial Court (RTC),1 in Criminal Case No. Q-02-113990, which
Decision2 was affirmed with modifications by the Court of Appeals.

The accused-appellants were charged with Robbery with Homicide

under an Information which reads:

That on or about the 2nd day of March, 2002, in Quezon City,

Philippines, the above-named accused, conspiring together,
confederating with and mutually helping one another, with intent to
gain, by means of violence and/or intimidation against [sic] person,
did then and there wilfully, unlawfully and feloniously rob one
EMILIO A. PRASMO, in the following manner, to wit: on the date and
place aforementioned, while victim/deceased Emilio A. Prasmo was
walking along A. Bonifacio Street, Barangay Sta. Lucia, Novaliches,
this City, together with his wife and daughter in-law, accused
pursuant to their conspiracy armed with sumpak, samurai, lead pipe
and .38 cal. revolver rob EMILIO A. PRASMO and took and carried
away ₱7,000.00, Philippine currency, and by reason or on the
occasion thereof, with evident premeditation, abuse of superior
strength and treachery, accused with intent to kill[,] attack, assault
and employ personal violence upon EMILIOA. PRASMO by then and
there shooting and hacking the victim with the use of said weapons,
thereby inflicting upon him serious and grave wounds which were the
direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of said Emilio A. Prasmo.3

When arraigned, all the accused-appellants entered a plea of not

guilty except accused Antonio. Thus, the RTC ordered a reverse trial in
so far as Antonio is concerned.

Evidence of the Prosecution

The prosecution presented Erlinda A. Prasmo (Erlinda), wife of the

victim, Emilio Prasmo (Emilio), who testified that on 2 March 2002,
while they were walking along Sta. Lucia Street, Novaliches, on their
way to RP Market, the accused-appellants, who are siblings, blocked
their way. Accused-appellant Danilo, armed with a "sumpak",
suddenly hit Emilio with a "bakal" while accused-appellant Antonio,
who was armed with a "samurai", hacked Emilio in the forehead and
struck him with a lead pipe at the right back portion of his legs and
middle back portion of his torso. Accused-appellant Danilo then took
Emilio’s money in the amount of ₱7,000.00 and thereafter aimed the
"sumpak" at the lower portion of Emilio’s chest and fired the same,
causing Emilio to slump on the ground. Accused-appellant Yoyong also
hit Emilio with a lead pipe at the back of the neck and middle portion
of his back.

As accused-appellants attacked and mauled Emilio, Erlinda, seeing her

husband sprawled motionless on the ground, shouted for help, but
nobody dared to help because accused-appellant Bayani, armed with a
gun, was shouting "walang lalapit". The accused-appellants
immediately left and Emilio was brought to the FEU Fairview
Hospital, where Emilio died.
Gina Prasmo, Emilio’s daughter, testified that at the time of the
incident, she was at their house when she was informed of the news.
She immediately went to the hospital where she learned that her
father was already dead.

The testimony of Dr. Editha Martinez, a medico-legal officer of the

Medico-Legal Division, Philippine National Police Crime Laboratory,
Camp Crame, Quezon City, was dispensed with because she was not
the one who performed the autopsy on the cadaver of Emilio, but
nevertheless, she identified such documents as Medico-Legal Report,
Autopsy Report, Sketch of the head showing contusion, anatomical
sketch showing the gunshot wound on the right portion of the chest,
and the anatomical sketch of Emilio.

Evidence of the Defense

Carmelita de Leon (Carmelita), sister of the accused-appellants,

testified that on the evening of 1 March 2002, she was at her house
when her brothers, accused-appellants Danilo and Antonio, arrived.
Upon observing that the heads of Antonio and Danilo were bleeding,
she was informed that Emilio and his son, Edgardo Prasmo (Edgardo),
attacked and mauled them, which caused their injuries. They reported
the incident to a "tanod" in the barangay hall, Julio Batingaw, who
told them to return in the afternoon so they could have a meeting with
Emilio and Edgardo. When they returned, Emilio and Edgardo did not
appear.

In the evening, at around 7 o’clock, fifteen (15) men carrying firearms,

who included Jerry and Edgar, sons of Emilio, stormed her house
looking for accused-appellants and threatened to kill her if she will
not disclose their whereabouts. To support her testimony, the defense
offered in evidence the medical certificates for the injuries sustained
by accused-appellants Antonio and Danilo dated 1 March 2002 and the
entry in the barangay blotter book dated 2 March 2002,about the
mauling of accused-appellants Antonio and Danilo.

The accused-appellants gave their testimonies that follow:

Jose de Leon, also known as Yoyong, was at the house of his brother-
in-law, Willie Bandong, in Bagong Barrio, Caloocan City to discuss the
schedule of the "pabasa". He stayed there between 8:00 to 9:00
o’clock in the evening. Danilo, at that time, was with his mother in
Pugad Lawin in Quezon City, to accompany his mother in doing her
work as a "manghihilot". They left Pugad Lawin between 8:00 to 9:00
o’clock in the evening and went home. Bayani, a police civilian agent,
at the night of the crime, was at the Police Station No. 5 in Fairview,
Quezon City, talking to a police officer.

Antonio, in the morning of 2 March 2002, went to the barangayhall

with his mother, Carmelita, and accused-appellant Danilo, to file a
complaint against Emilio and Emilio’s son, Edgardo, due to the
mauling incident the previous evening. In the barangayhall, they were
told to return in the afternoon so they could have a meeting with
Emilio and Edgardo. They returned as told. Emilio and Edgardo did
not.

On the way home, accused-appellant Antonio met Emilio, Erlinda, and

Gina, Emilio’s daughter, walking along A. Bonifacio Street. Emilio,
upon seeing Antonio, immediately opened his jacket and tried to pull
"something" out. Antonio then instantlytried to grab that "something"
from Emilio. While grappling for the possession of that "something",
which turned out to be a "sumpak", it fired.

Bernaly Aguilar, while on her way to the market in Sta. Lucia,

witnessed a fight involving accused-appellant Antonio and another
man, who were grappling for the possession over a "bakal". After
walking a few meters away from the incident, she heard a shot.

The Ruling of the Regional Trial Court

According to the accused-appellants, Erlinda is not a credible witness

and that her testimony is barren of probative value for having grave
and irreconcilable inconsistencies, as opposed to accused-appellant
Antonio’s testimony which supposedly established the presence of all
the essential requisites of self-defense. Accused-appellants referred to
the inconsistency between Erlinda’s court testimony and her
Sinumpaang Salaysay. In her Sinumpaang Salaysay, she identified
accused-appellant Antonio as the one who fired the "sumpak" at the
lower chest of Emilio and took Erlinda’s money. However, during her
direct examination, she testified that it was accused-appellant Danilo
who shot Emilio with a "sumpak" and thereafter, took his wallet.

Accused-appellants further argued that Erlinda could not have

mistaken Danilo for Antonio, because she knew them both as they
reside six (6) houses away from the house of the Prasmos and that
accused-appellant Antonio has a distinctive feature — having a cleft
palate or is "ngongo".

The RTC rejected accused-appellants’ contentions. According to the

RTC, Erlinda’s narration of the incident is clear and convincing. While
her testimony has some inconsistencies, they refer only to collateral
and minor matters, which do not detract from the probative value of
her testimony.

The trial court found established the circumstances of abuse of

superior strength and treachery, abuse of strength absorbed by the
aggravating circumstance of treachery:4

These requisites are obviously present in this case considering that

the evidence shows that after Danilo suddenly fired at Emilio’s lower
portion of the chest accused Antonio and Yoyong ganged up on Emilio,
with Antonio hitting him with a lead pipe on the right back portion of
his legs and in the middle back torso and hacking him with a samurai,
and accused Yoyong hitting also (sic) him with a lead pipe on the right
back leg and middle portion of his back. Said action of the four (4)
accused rendered it difficult for the victim to defend himself.5

However, citing People v. Nimo,6 the RTC ruled that because robbery
was not duly established, it cannot convict accused-appellants for
robbery with homicide. It relied on the principle that in order to
sustain a conviction for robbery with homicide, robbery must be
proven as conclusively as the killing itself.7 Thus, as opposed to the
Information which charged the accused-appellants of the crime of
Robbery with Homicide, the RTC found accused-appellants guilty
beyond reasonable doubt of the crime of Murder by conspiracy. The
dispositive portion of the RTC Decision reads:

WHEREFORE, the Court finds accused BAYANI DE LEON, ANTONIO DE

LEON, DANILO DE LEON and YOYONG DE LEON guilty beyond
reasonable doubt of the crime of MURDER defined and penalized
under Article 248 of the Revised Penal Code as amended and are
hereby sentenced to suffer the penalty of RECLUSION PERPETUA with
all the accessory penalties provided by law and to jointly and
severally indemnify the heirs of the late EMILIO PRASMO the amounts
of ₱50,000.00 as indemnity for his death and ₱50,000.00 as moral
damages.8

The Ruling of the Court of Appeals

The Court of Appeals affirmed the conviction of the accused-
appellants. Contrary to the accused-appellants’ contention that the
trial court committed a reversible error when it gave credence to
Erlinda’s testimony, the Court of Appeals considered Erlinda’s
recollection of the events as direct, positive and convincing manner,
unshaken by a tedious and grueling cross-examination.9

With regard to the crime charged, the Court of Appeals agreed that the
accused-appellants are guilty of the crime of Murder instead of
Robbery with Homicide. As borne by the records, the only intent of the
accused-appellants was to kill Emilio. The "accused-appellants had an
axe to grind against Emilio x x x. The means used by the accused-
appellants as well as the nature and number of wounds - debilitating,
fatal and multiple – inflicted by appellants on the deceased manifestly
revealed their design to kill him. The robbery committed by appellant
Danilo [was on] the spur of the moment or [was] a mere
afterthought."10

Also, the Court of Appeals found accused-appellant Danilo guilty of

Robbery for unlawfully divesting Emilio of ₱7,000.00, which it
considered as an action independent of and outside the original design
to murder Emilio. The dispositive portion of the Court of Appeals
Decision reads: WHEREFORE, the appealed Decision dated May 25,
2007 of the Regional Trial Court of Quezon City, Branch 81 is hereby
AFFIRMED in toto with the added MODIFICATION that accused-
appellant Danilo de Leon is also found guilty beyond reasonable doubt
of the crime of Robbery defined under Article 293 and penalized under
Article 294 (5) of the Revised Penal Code, and is sentenced to suffer
the indeterminate penalty of two (2) years and seven (7) months of
prision correccional, as minimum, to eight (8) years and ten (10) days
of prision mayor, as maximum. He is ordered to return to the heirs of
Emilio Prasmo the cash of ₱7,000.00, representing the amount he
took from said victim.11

Now, before the Court on automatic review, accused-appellants

contend, by way of assignment of errors, that the appellate court
gravely erred when:

1. it gave full credence to the inconsistent testimony of the

alleged eyewitness Erlinda Prasmo; and
 2. it disregarded the self-defense interposed by Antonio De Leon
and the denial and alibi interposed by Bayani, Danilo, and
Yoyong, all surnamed De Leon.12

Our Ruling

The accused-appellants’ attempt to discredit Erlinda’s testimony must

fail. Inconsistencies between the declaration of the affiant in her
sworn statements and those in open court do not necessarily discredit
the witness;13 it is not fatal to the prosecution’s cause. In fact,
contrary to the defense’s claim, discrepancies erase suspicion that the
witness was rehearsed or that the testimony was fabricated. As
correctly held by the Court of Appeals, despite minor inconsistencies,
Erlinda’s narration revealed each and every detail of the incident,
which gave no impression whatsoever that her testimony is a mere
fabrication. As we already enunciated in previous rulings, "[i]t is a
matter of judicial experience that affidavits or statements taken ex
parte are generally incomplete and inaccurate. Thus, by nature, they
are inferior to testimony given in court, and whenever there is
inconsistency between the affidavit and the testimony of a witness in
court, the testimony commands greater weight."14

Before us is a reversed trial. As one of the accused-appellants,

Antonio, pleaded self-defense, he admitted authorship of the crime. At
this juncture, the burden of proof is upon the accused-appellants to
prove with clear and convincing evidence the elements of self-
defense: (1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent or repel the
attack; and (3) lack of sufficient provocation on the part of the person
defending himself,15 which the defense failed to discharge.

Unlawful Aggression

Unlawful aggression refers to an assault to attack, or threat in an

imminent and immediate manner, which places the defendant’s life in
actual peril. Mere threatening or intimidating attitude will not suffice.
There must be actual physical force or actual use of weapon. 16

Applying the aforesaid legal precept, Emilio’s act of pulling

"something" out from his jacket while he was three (3) to four (4)
meters away from accused-appellant Antonio cannot amount to
unlawful aggression. Neither can the act of pulling "something" out
amount to physical force or actual use of weapon, or even threat or
intimidating attitude. Even if accused-appellant Antonio’s account of
the incident is truthful, that Emilio had motive to kill accused-
appellant Antonio, giving accused-appellant reasonable grounds to
believe that his life and limb was in danger, and that the "something"
was indeed a "sumpak", it can hardly be recognized as unlawful
aggression to justify self-defense.17 There is no showing that accused-
appellant Antonio’s life was in peril by the act of pulling "something"
out. As correctly observed by the Court of Appeals, "it must be noted
that appellant never said that Emilio aimed or pointed the "sumpak"
at him or at least made an attempt to shoot him".18 The threat on
accused-appellant Antonio’s life is more imagined than real. As we
already held in a catena of cases, the act of pulling "something" out
cannot constitute unlawful aggression.19

Accused-appellant Antonio cannot allege that it was Emilio who

instigated the incident; that Emilio’s fate was brought about by his
own actuations. There is no sufficient provocation, nay, provocation at
all in the act of pulling "something" out.

Contrary to accused-appellant Antonio’s contention that he acted in

self-defense, the Medico-Legal Report No. M-685-02 dated 12 March
2002 proved otherwise. As borne by the records, Emilio sustained
numerous wounds, including the fatal gunshot wound in the chest,
which belie accused-appellants’ defense that Antonio was alone at the
scene of the crime and acted in self-defense. The Medico-Legal Report
No. M-685-02 dated 12 March 2002 revealed that the victim sustained
the following multiple injuries:

HEAD AND NECK:

1. Lacerated wound, right parietal region, measuring 4 x 3 cm, 7

cm from the mid-sagittal line.

2. Contusion, right mandibular region, measuring 11 x 2 cm, 7

cm from the anterior midline.

3. Contusion, nasal region, measuring 3 x 2.5 cm, along the

anterior midline.

4. Hematoma, left parietal region, measuring 5 x 4 cm, 8 cm

from the anterior midline.
 5. Contusion, left cheek, measuring 11 x 3 cm, 8 cm from the
anterior midline.

6. Contusion, left lateral neck region, measuring 6 x 3 cm, 4 cm

from the anterior midline.

7. Lacerated wound, occipital region, measuring 5 x 1.8 cm,

bisected by the anterior midline.

8. There is a scalp hematoma at the right parieto-occipital

region.

9. There are subdural, sub arachnoid hemorrhages at the right

celebrum.

10. The right parietal bone is fractured.

TRUNK AND ABDOMEN:

1. Gunshot wound, right chest, measuring 2.6 cm x 2.3 cm, 4 cm

from the anterior midline, 112 cm from the right heel, directed
posteriorwards, downwards, and slightly lateralwards,
fracturing the 6th and 7th ribs, lacerating the lower lobe of the
right lung, diaphragm, right lobe of the liver with the deformed
plastic wad embedded, right kidney with 2 lead pellets found
embedded and the aorta with 3 pellets embedded thereat and 2
lead pellets found at the right thoracic cavity.

2. Contusion, right shoulder region, measuring 12 x 3 cm, 8 cm

from the posterior midline.

3. Abrasion, right shoulder region, measuring 3.5 x 2 cm, 12 cm

from the posterior midline.

4. Contusion, left shoulder region, measuring 4 x 2 cm, 6 cm

from the posterior midline.

EXTREMITIES:

1. Contusion, left elbow, measuring 8 x 2 cm, 5 cm medial to its

posterior midline.

2. Abrasion, dorsal aspect of the left hand, measuring 0.6 x 0.3

cm, 3 cm medial to its posterior midline.20
As we already held, the nature and location of wounds are considered
important indicators which disprove a plea of self-defense.21 A perusal
of the evidence would depict the presence of a deliberate onslaught
against Emilio. The means used by accused-appellants as shown by the
nature, location and number of wounds sustained by Emilio are so
much more than sufficient to repel or prevent any alleged attack of
Emilio against accused-appellant Antonio. Evidently, the accused-
appellants’ intent to kill was clearly established by the nature and
number of wounds sustained by Emilio. The wounds sustained by
Emilio indubitably reveal that the assault was no longer an act of self-
defense but a homicidal aggression on the part of accused-
appellants.22 Double Jeopardy

The RTC did not find the accused guilty of the crime of robbery with
homicide as charged in the Information, but found all the accused
guilty of the crime of murder. According to the RTC, contrary to the
charge of robbery with homicide, the accused is guilty of the crime of
murder because the prosecution failed to establish the crime of
robbery. The RTC, citing People v. Nimo,23 ratiocinated that in order
to sustain a conviction for robbery with homicide, robbery must be
proven as conclusively as the killing itself.

On the other hand, the Court of Appeals affirmed with modifications

the ruling of the RTC and found all of the accused guilty of the crime
of murder. However, contrary to the findings of the RTC with regard
to the crime of robbery, the Court of Appeals reversed the ruling of
the RTC and found accused Danilo guilty of the separate crime of
robbery. We find that the appellate court erred for violating the
constitutional right of Danilo against double jeopardy as enshrined in
Section 21, Article III of the 1987 Constitution, to wit:

Section 21. No person shall be twice put in jeopardy of punishment for

the same offense.1âwphi1 If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar
to another prosecution for the same act.24

Double jeopardy attaches if the following elements are present: (1) a

valid complaint or information; (2) a court of competent jurisdiction;
(3) the defendant had pleaded to the charge; and (4) the defendant
was acquitted, or convicted or the case against him was dismissed or
otherwise terminated without his express consent.25
In case at bar, it is undisputed the presence of all the elements of
double jeopardy: (1) a valid Information for robbery with homicide
was filed; (2) the Information was filed in the court of competent
jurisdiction; (3) the accused pleaded not guilty to the charge; and (4)
the RTC acquitted Danilo for the crime of robbery for lack of sufficient
evidence, which amounted to an acquittal from which no appeal can
be had. Indeed the conviction for murder was premised on the fact
that robbery was not proven. The RTC Decision which found accused
guilty of the crime of murder and not of robbery with homicide on the
ground of insufficiency of evidence is a judgment of acquittal as to the
crime of robbery alone.

As the first jeopardy already attached, the appellate court is precluded

from ruling on the innocence or guilt of Danilo of the crime of
robbery. To once again rule on the innocence or guilt of the accused of
the same crime transgresses the Constitutional prohibition not to put
any person "twice x x x in jeopardy of punishment for the same
offense."26 As it stands, the acquittal on the crime of robbery based on
lack of sufficient evidence is immediately final and cannot be appealed
on the ground of double jeopardy.27 A judgment of acquittal is final
and unappealable. In fact, the Court cannot, even an appeal based on
an alleged misappreciation of evidence, review the verdict of acquittal
of the trial court28 due to the constitutional proscription, the purpose
of which is to afford the defendant, who has been acquitted, final
repose and safeguard from government oppression through the abuse
of criminal processes.29 The crime of robbery was not proven during
the trial. As we discussed, the acquittal of the accused-appellant,
including Danilo, is not reversible.

WHEREFORE, the Decision of the Court of Appeals is hereby

AFFIRMED with MODIFICATIONS. Accused-Appellants BAYANI DE
LEON, ANTONIO DE LEON, DANILO DE LEON and YOYONG DE LEON
are hereby declared guilty beyond reasonable doubt of the crime

of Murder and are sentenced to suffer the penalty of reclusion

perpetua. The accused-appellants are ordered to pay Emilio Prasmo's
heirs the following amounts: ₱75,000.00 as civil indemnity for Emilio
Prasmo's death, ₱75,000.00 as moral damages, and ₱30,000.00 as
exemplary damages.

All monetary awards shall earn interest at the rate of 6% per annum
from the date of finality until fully paid.
SO ORDERED.