1

G.R. No. L-20569 October 29, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
J. J. KOTTINGER, defendant-appellant.

Fisher, Dewitt, Perkins and Brady for appellant.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The question to be here decided is whether or not pictures portraying the inhabitants of the country in native dress and as they
appear and can be seen in the regions in which they live, are absence or indecent. Surprising as it may seem, the question is
one of first impression not alone in the Philippine Islands, but in the United States, Great Britain, and elsewhere. This will
explain why a case which otherwise would be heard and voted in Division has been submitted to the court in banc for decision.

On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply Co. at 110 Escolta, Manila.
He found and confiscated the post-cards which subsequently were used as evidence against J. J. Kottinger, the manager of
the company.

Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of Manila. The information filed
in court charged him with having kept for sale in the store of the Camera Supply Co., obscene and indecedent pictures, in
violation of section 12 of Act No. 277. To this information, the defendant interposed a demurrer based upon the ground that the
facts alleged therein did not constitute an offense and were not contrary to law; but trial court overruled the demurrer and the
defendant duly excepted thereto. Following the presentation of evidence by the Government and the defense, judgment was
rendered finding the defendant guilty of the offense charged and sentencing him to pay a fine of P50 with subsidiary
imprisonment in case of insolvency, and the costs.

The five errors assigned by defendant-appellant in this court divide themselves into two general issues. The first point
sustained by counsel for the appellant is in nature a technical objection, growing out of the defendant's demurrer. The second
point, in reality the decesive issue, is as suggested in the beginning of the decision. We will take upon the assignments of
errors as thus classified in order.

Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene or indecent publications
misdemeanors. Said section 12 which, it is contended by the Government, has here been violated, and which, appellant
argues, does not apply to the information and the facts, reads as follow:

Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale, distributes, or exhibits any
obscene or indecent writing, paper, book, or other matter, or who designs, copies, draws, engraves, paints, or
otherwise prepares any obscene picture or print, or who moulds, cuts, casts, or otherwise makes any obscene or
indecent figure, or who writes, composes, or prints any notice or advertisement of any such writing, paper, book,
print, or figure shall be guilty of a misdemeanor and punished by a fine of not exceeding one thousand dollars or by
imprisonment not exceeding one year, or both.

Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is intended to bear out his
thesis, first, that section 12 does not prohibit the taking, selling, and publishing of alleged obscene and indecent pictures and
prints, and second, that the information in this case charges no offense prohibited by section 12. Recall, however, that the law
provides punishment, among other things, for any person who keeps for sale or exhibits any absence or indecent writing,
paper, book, or other matter, and that the information charges the defendant, among other things, with having wilfully and
feloniously kept for sale, distribution, or exhibition, obscene and indecent pictures.

The phrase in the law "or other matter", was apparently added as a sort of "catch-all." While limited to that which is of the
same kind as its antecedent, it is intended to cover kindred subjects. The rule of ejusdem generis invoked by counsel is by no
means a rule of universal application and should be made to carry out, not to defeat, the legislative intent. Even if the phrase
"or other matter" be cobstrued to mean "or other matter of like kind," pictures and postcards are not so far unrelated to
writings, papers, and books, as not to be covered by the general words (Commonwealth vs. Dejardin [1878], 126 Mass., 46;
30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508).

The line of argumentation is more refined that practical. Once conceded that section 12 of Act No. 277 does not cover the
present case, there yet remain for application article 571, No. 2, of the penal code, and section 730 of the Revised Ordinances
of the City of Manila. The section of the Revised Ordinances cited is most specific when it provides in part that no person shall
"exhibit, circulate, distribute, sell, offer or expose for sale, or give or deliver to another, or cause the same to be done, any
lewd, indecent, or absence book, picture, pamphlet, card, print, paper, writing, mould, cast, figure, or any other thing."
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While admittedly the information is lacking in precision and while the content of section 12 of the Libel Law is not as inclusive
as it might be, we yet conclude that the information is not fatally defective, and that said section 12 covers the alleged facts.

We come now to decide the main issue. We repeat that our own researches have confirmed the statement of counsel that no
one parrallel case be found. We must perforce reason from the general to the specific and from universal principle to actual
fact.

The pictures which it is argued offend against the law on account of being obscene and indecent, disclose six different
postures of non-Christian inhabitants of the Philippines. Exhibit A carries the legend "Philippines, Bontoc Woman." Exhibit A-1
is a picture of five young boys and carries the legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao
Belle, Philippines. Greetings from the Philippines." Exhibit A-3 has the legend "Igorot Girl, Rice Field Costume." Exhibit A-4
has the legend "Kalinga Girls, Philippines. Exhibit A-5 has the legend "Moros Philippines."

The prosecution produced no evidence proving the postcards obscene and indecent because it thought the post-cards
themselves the best evidence of that fact. The fiscal admitted in open court "that those pictures represented the natives (non-
Christians) in their native dress." The defendant, on the other hand, attempted to show that the pictures as true to life. Dr. H.
Otley Beyer, Professor in the University of the Philippines, corroborated by other witnesses, testified from his studies in various
parts of the Islands, such as the Mountain Province, Abra, Palawan, and Mindanao and Sulu, that none of the pictures
represented poses which he had not observed on various occasions, and that the costumes worn by the people in the pictures
are the true costumes regularly worn by them. Are such pictures obscene or indecent?

The word "obscene" ands the term "obscenity" may be defined as meaning something offensive to chastify, decency, or
delicacy. "Indeceny" is an act against behavior and a just delicacy. The test ordinarily followed by the courts in determining
whether a particular publication or other thing is obscene within the meaning of the statutes, is whether the tendency of the
matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose
hands a publication or other article charged as being obscene may fall. Another test of obscenity is that which shocks the
ordinary and common sense of men as an indecency, (29 Cyc., 1315; 8 R. C. L., 312.)

The Philippine statute does not attempt to define obscene or indecent pictures, writings, papers, or books. But the words
"obscene or indecent" are themselves descriptive. They are words in common used and every person of average intelligence
understand their meaning. Indeed, beyond the evidence furnished by the pictures themselves, there is but little scope for proof
bearing on the issue of obscenity or indecency. Whether a picture is obscene or indecent must depend upon the
circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep., 635.)

Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the use of the mails for obscene
matter and prohibiting the importation into the Philippine Islands of articles, etc., of obscene or indecent character. (U. S. Rev.
Stat., art. 3893; 36 stat. at L., 135; 7 Fed. Stat. Ann., 1194, sec. 3[b].)

"Obscene," as used in the Federal Statutes making it a criminal offense to place in the mails any obscene, lewd, or lascivious
publication, according to the united States Supreme Court and lesser Federal courts, signifies that form of immorality which
has relation to sexual impurity, and has the same meaning as is given at common law in prosecutions for obscene libel.
(Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888, 4889.)

The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for despositing an obscene publication
in a United States post-office in violator of the Postal Law. Judge Philips said:

The statute does not undertake to define the meaning of the terms "obscene," etc., further than may be implied by the
succeeding phrase, "or other publication of an indecent character." On the well-organized canon of construction these words
are presumed to have been employed by the law-maker in their ordinary acceptation and use.

As they cannot be said to have acquired any technical significance as applied to some particular matter, calling, or
profession, but are terms of popular use, the court might perhaps with propriety leave their import to the presumed
intelligence of the jury. A standard dictionary says that "obscene" mean "offensive to chastity and decency;
expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed."
This mere dictionary definition may be extended or amplified by the courts in actual practice, preserving, however, its
essential though, and having always due regard to the popular and proper sense in which the legislature employed
the term. Chief Justice Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said: "The test of obscenity is this: Where the
tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall;" and where "it who suggest to the minds of the
young of either sex, or even to persons of more advanced years, thoughts of the most impure and libidinous
character." So, also, it has been held that a book is obscene which is offensive to decency or chastity, which is
immodest, which is indelicate, impure, causing lewd thoughts of an immoral tendency." U. S. vs. Bennet, 16 Blatchf.,
338. Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732, observed:
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"The word "obscene" ordinarily means something which is offensive to chastity; something that is foul or
filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the word in the
concrete; but when used, as in the statute, to describe the character of a book, pamphlet, or paper, it means
containing immodest and indecent matter, the reading whereof would have a tendency to deprave and
corrupt the minds of those into whose hands the publication might fall whose minds are open to such
immoral influences."

Laws of this character are made for society in the aggregate, and not in particular. So, while there may be individuals
and societies of men and women of peculiar motions are idiosyncrasies, whose moral sense would neither be
depraved nor offended by the publication now under consideration, yet the exceptional sensibility, or want of
sensibility, of such cannot be allowed as a standard by which its obscenity or indecency is to be tested. Rather is the
test, what is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable
effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women,
young boys and girls, — the family, which is the common nursery of mankind, the foundation rock upon which the
state reposes?

. . . To the pure all things are pure, is too poetical for the actualities of practical life. There is in the popular conception
and heart such a thing as modesty. It was born in the Garden of Eden. After Adam and Eve ate of the fruit of the tree
of knowledge they passed from the condition of perfectibility which some people nowadays aspire to, and, their eyes
being opened, they discerned that there was both good and evil; "and they knew that they were naked; and they
sewed fig leaves together, and made themselves aprons." From that day to this civilized man has carried with him the
sense of shame, — the feeling that there were some things on which the eye — the mind — should not look; and
where men and women become so depraved by the use, or so insensate from perverted education, that they will not
evil their eyes, nor hold their tongues, the government should perform the office for them in protection of the social
compact and the body politic.

As above intimated, the Federal statue prohibits the importation or shipment into the Philippine Islands of the following:
"Articles, books, pamphlets, printed matter, manuscripts, typewritten matter, paintings, illustrations, figures or objects of
obscene or indecent character or subversive of public order." There are, however, in the record, copies of reputable
magazines which circulate freely thruout the United States and other countries, and which are admitted into Philippines without
question, containing illustrations identical in nature to those forming the basis of the prosecution at bar. Publications of the
Philippine Government have also been offered in evidence such as Barton's "Ifugao Law," the "Philippine Journal of Science"
for October, 1906, and the Reports of the Philippine Commission for 1903, 1912, and 1913, in which are found illustrations
either exactly the same or nearly akin to those which are now impugned.

It appears therefore that a national standard has been set up by the Congress of the United States. Tested by that standard, it
would be extremely doubtful if the pictures here challenged would be held obscene or indecent by any state of Federal court. It
would be particularly unwise to sanction a different type of censorship in the Philippines that in the United States, or for that
matter in the rest of the world.

The pictures in question merely depict persons as they actually live, without attempted presentation of persons in unusual
postures or dress. The aggregate judgment of the Philippine community, the moral sense of all the people in the Philippines,
would not be shocked by photographs of this type. We are convicted that the post-card pictures in this case cannot be
characterized as offensive to chastity, or foul, or filthy.

We readily understand the laudable motives which moved the Government to initiate this prosecution. We fully appreciate the
sentiments of colleagues who take a different view of the case. We would be the last to offend the sensibilities of the Filipino
people and the sanction anything which would hold them up to ridicule in the eyes of mankind. But we emphasize that we are
not deciding a question in political theory or in social ethics. We are dealing with a legal question predicated on a legal fact,
and on this question and fact, we reach the conclusion that there has not been proved a violation of section 12 of the Libel
Law. When other cases predicated on other states of facts are brought to our attention, we will decide them as they arise.

We seem to recall the statement of counsel that the proprietor of the photographic concern whom he represents would on his
own initiative place suitable and explicit inscriptions on the pictures so that no one may be misled as to them. Indeed, he might
even go further and out of consideration for the natural sensibilities of his customers, withdraw from sale certain pictures which
can be pointed out to him.

We hold that pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the
regions in which they live, are not obscene or indecent within the meaning of the Libel Law. Disagreeing therefore with the
appellant on his technical argument but agreeing with him on his main contention, it becomes our duty to order the dismissal of
the information. 1awph!l.net

Judgment is reversed, the information is dismissed, and the defendant-appellant is acquitted with all costs de oficio. So
ordered.
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G.R. No. L-7295 June 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES and JOSE FAJARDO, defendants.
MARINA PADAN Y ALOVA and JOSE FAJARDO, defendants-appellants.

Augusto Revilla for appellant Jose Fajardo.

W. M. Bayhon for appellant Marina Padan y Alova.
Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee.

MONTEMAYOR, J.:

In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme Espinosa, and Ernesto Reyes were
charged with a violation of Article 201 of the Revised Penal Code, said to have been committed as follows:

That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said accused conspiring and
confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously
exhibit or cause to be exhibited inside a building at the corner of Camba Ext. and Morga Ext., Tondo, this City,
immoral scenes and acts, to wit: the said accused Jose Fajador y Garcia, being then the manager and Ernesto Reyes
y Yabut, as ticket collector and or exhibitor, willfully ,unlawfully and feloniously hired their co-accused Marina Palan y
Alova and Cosme Espinosa y Abordo to act as performers or exhibitionists to perform and in fact performed sexual
intercourse in the presence of many spectators, thereby exhibiting or performing highly immoral and indecent acts or
shows thereat.

Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the assistance of her counsel de parte and
counsel de oficio, asked for permission to withdraw her former plea of not guilty, which was granted, and upon rearraignment,
she pleaded guilty to the charge. In a decision dated October 12, 1953, Marina Padan was found guilty as charged and
sentenced to six months and one day of prision correccional and a fine of P200, with subsidiary imprisonment in case of
insolvency, not to exceed one-third of the principal penalty, with the accessory penalties prescribed by the law, and to pay the
proportionate costs. After trial of the three remaining accused, they were all found guilty; Cosme Espinosa and Ernesto Reyes
were sentenced each to not less than six months and one day of prision correccional and not more than one year, one month
and eleven days of prision correccional, to pay a fine of P500, with subsidiary imprisonment in case of insolvency, not to
exceed one-third of the principal penalty, and to pay the proportionate costs. Jose Fajardo was sentenced to not less than one
year, one month and ten days of prision correccional and not more than one year eight months and twenty days, also
of prision correccional, to pay a fine of P1,000, with subsidiary imprisonment in case of insolvency, not to exceed one-third of
the principal penalty and to pay the proportionate costs. The army steel bed, the army woolen blanket, the pillow, the ladies'
panties, and the men's underwear, described in Exhibit C, were declared confiscated.

The four accused appealed in the decision, the appeal having been sent to us. Appellants Espinosa and Reyes failed to file
their briefs within the period prescribed by law and their appeal was dismissed by resolution of this Court of November 25,
1955, and the decision as to them became final and executory on January 7, 1956, as appears from the entry of judgment.

Because of her plea of guilty in the lower court, appellant Marina in her appeal do not question her conviction; she merely
urges the reduction of the penalty by eliminating the prison sentence. We do not feel warranted in interfering with the exercise
of discretion in this matter, made by the lower court presided by Judge Magno S. Gatmaitan. According to his decision of
October 12, 1953, in imposing the sentence, he already considered Marina's plea of leniency, and so despite the
recommendation of the fiscal that she be fined P600.00 in addition to the prison sentence of six months and one day, his
honor reduced the fine to only P200.

We believe that the penalty imposed fits the crime, considering its seriousness. As far as we know, this is the first time that the
courts in this jurisdiction, at least this Tribunal, have been called upon to take cognizance of an offense against morals and
decency of this kind. We have had occasion to consider offenses like the exhibition of still moving pictures of women in the
nude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was
involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of
pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition
of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can
see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. We repeat that
because of all this, the penalty imposed by the trial court on Marina, despite her plea of guilty, is neither excessive nor
unreasonable.
 5

Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the commission of the offense charged, he in
its that he was not the manager or the person incharge of the show or proceedings on the night of September 13, 1953; that
his participation, if he participate at all, was to play the role of an innocent bystander, but that because of his popularity in the
neighborhood, being popularly known as a "siga-siga" character, he was requested by the spectators to select the man and
the woman to engage or indulge in the actual act of coitus before the spectators; that after making the selection, he did not
even care to witness the act but left the scene and returned to it only when he heard a commotion produced by the raid
conducted by the police.

The evidence on his active participation and that he was the manager and one in charge of the show is however ample, even
conclusive. We have carefully examined such evidence, and we are satisfied that they fully support the findings of the trial
court. Such facts may be briefly stated as follows: At the corner of Morga Extension and Camba Extension, Tondo, Manila,
was a one story building which judging from the picture exhibited is nothing but a shed, with a floor space of eight by fifteen
meters which was mainly used for playing ping-pong. A ping-pong table must have been placed in the center and on two sides
were built benches in tiers, so that the spectators seated on them could look down and see the game. On September 13,
1953, however, the building was used for a different purpose. It was to be the scene of what was said to be an exhibition of
human "fighting fish", the actual act of coitus or copulation. It must have been advertised by word of mouth; tickets therefor
were sold at P3 each, and the show was supposed to begin at 8:00 o'clock in the evening. About that time of the night, there
was already a crowd around the building, but the people were not admitted into it until about an hour later, and the show did
not begin until about 9:15. The Manila Police Department must have gotten wind of the affair; it bought tickets and provided
several of its members who later attended the show, but in plain clothes, and after the show conducted a raid and made
arrests. At the trial, said policemen testified as to what actually took place inside the building. About two civilians who attended
the affair gave testimony as to what they saw.

The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto Reyes. He also collected
tickets. In all, there were about ninety paying customers, while about sixteen were allowed to enter free, presumably friends of
the management. Jose Fajardo y Garcia was clearly the manager of the show. He was at the door to see to it that the
customers either were provided with tickets or paid P3.00 entrance fee. He even asked them from whom they had bought the
tickets. He ordered that an army steel bed be placed at the center of the floor, covered with an army blanket and provided with
a pillow. Once the spectators, about 106 in number, were crowded inside that small building, the show started. Fajardo
evidently to arouse more interest among the customers, asked them to select among two girls presented who was to be one of
the principal actors. By pointing to or holding his hand over the head of each of the two women one after the other, and judging
by the shouts of approval emitted by the spectators, he decided that defendant Marina Padan was the subject of popular
approval, and he selected her. After her selection, the other woman named Concha, left. Without much ado, Fajardo selected
Cosme Espinosa to be Marina's partner. Thereafter, Cosme and Marina proceeded to disrobe while standing around the bed.
When completely naked, they turned around to exhibit their bodies to the spectators. Then they indulged in lascivious acts,
consisting of petting, kissing, and touching the private parts of each other. When sufficiently aroused, they lay on the bed and
proceeded to consummate the act of coitus in three different positions which we deem unnecessary to describe. The four or
five witnesses who testified for the Government when asked about their reaction to what they saw, frankly admitted that they
were excited beyond description. Then the police who were among the spectators and who were previously provided with a
search warrant made the raid, arrested the four defendants herein, and took pictures of Marina and Cosme still naked and of
the army bed, which pictures were presented as exhibits during the trial. From all this, there can be no doubt that Jose Fajardo
y Garcia contrary to what he claims, was the person in charge of the show. Besides, as found by the trial court and as shown
by some of the tickets collected from the spectators, submitted as exhibits, said tickets while bearing on one side printed
matter regarding an excursion to Balara to be held on August 30, 1953 from 7:00 a.m. to 5:00 p.m., sponsored by a certain
club, on the other side appears the following typewritten form, reading:

P3.00 Admit one

PLEASURE SHOW
Place: P. Morga Ext. and Camba Ext.
Time : 8:00 o'clock sharp,

and superimposed on the same is the rubber stamped name "Pepe Fajardo," which defendant Fajardo admits to be his name.
Considering all the above circumstances, we agree with the trial court that Jose Fajardo is the most guilty of the four, for he
was the one who conducted the show and presumably derived the most profit or gain from the same.

As regards the penalty imposed by the trial court on appellant Fajardo, we agree with the Solicitor General that the same is
correct, except the minimum thereof which is beyond the legal range, and which should be reduced from one year, one month,
and ten days of prision correccional to only six months of arresto mayor.

With the modification above-mentioned, the decision appealed from by Marina Padan and Jose Fajardo are hereby affirmed,
with costs against both.
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G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision 1 dated March 21, 2003 and the Resolution dated September 2, 2003,
of the Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC),
Branch 21, in Criminal Case No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the Revised Penal Code, as
amended by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to
six (6) years of prision correccional, and to pay the fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal
Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store
bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional
Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code
against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E.
Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the
prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated
twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully,
unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at
564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of
x-rated VHS Tapes, lewd films depicting men and women having sexual intercourse[,] lewd photographs of nude men
and women in explicating (sic) positions which acts serve no other purpose but to satisfy the market for lust or
pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo
L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid.
After the prosecution presented its evidence, the counsel for the accused moved for leave of court to file a demurrer to
 7

evidence, which the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the
reception of evidence for the accused. A motion for reconsideration was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision. 5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS
GUILTY beyond reasonable doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty
of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision correccional as maximum, to pay
fine of P6,000.00 each and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is
hereby ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the
government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as
follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN
TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. 8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials.
Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the
prosecution must prove that he was present during the raid and that he was selling the said materials. Moreover, he contends
that the appellate court’s reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s
permit, has no sufficient basis since the prosecution failed to prove his ownership of the establishment. Estorninos, on the
other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under
Article 201, and petitioner Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General,
Fernando was naturally a seller of the prohibited materials and liable under the Information. The Solicitor General also
maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove
refute the prosecution’s evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for
decision.a1 12 The trial court therefore resolved the case on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect,
as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the
materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such
materials.13 Necessarily, that the confiscated materials are obscene must be proved.
 8

Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court
defined obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of
obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a publication or other article charged as being obscene may fall. 15 Another test
according to Kottinger is "that which shocks the ordinary and common sense of men as an
indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must depend upon the
circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the
community reached by it.17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of
the Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed
and appreciated by people interested in art, there would be no offense committed. However, the pictures here in
question were used not exactly for art’s sake but rather for commercial purposes. In other words, the supposed
artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor
importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition;
and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of
doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to
satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and
lust, and for love [of] excitement, including the youth who because of their immaturity are not in a position to resist
and shield themselves from the ill and perverting effects of these pictures. 20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature."
The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it,
there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to
public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence
specially on the youth of the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary
community standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court
measures obscenity in terms of the "dominant theme" of the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to
afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such
as, whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions,
whether such exhibitions cease to be obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament,
which has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art.24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and
how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not
help at all. It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid
advance of civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines,
to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to
the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined
by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.26 But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive." 27No one will be subject to prosecution for the sale or exposure of obscene materials
unless these materials depict or describe patently offensive "hard core" sexual conduct. 28 Examples included (a) patently
offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently
offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. 29 What
remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and
on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial
court in ruling that the confiscated materials are obscene, reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .
 9

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely
Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and
are made and shown not for the sake of art but rather for commercial purposes, that is gain and profit as the
exclusive consideration in their exhibition. The pictures in the magazine exhibited indecent and immoral scenes and
acts…The exhibition of the sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an
offense to public morals, inspiring…lust and lewdness, exerting a corrupting influence especially on the youth.
(Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa
Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent
and immoral scenes and acts. Her dancing movements excited the sexual instinct of her male audience. The motive
may be innocent, but the performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons
interested in art to satisfy and inspire their artistic tastes but persons who are desirous of satisfying their
morbid curiosity, taste and lust and for [love] of excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting effects of the
pictures, the display of such pictures for commercial purposes is a violation of Art. 201. If those pictures
were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed (People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless
such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of
facts.31 In this case, petitioners neither presented contrary evidence nor questioned the trial court’s findings. There is also no
showing that the trial court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not
punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the
public. The offense in any of the forms under Article 201 is committed only when there is publicity. 32 The law does not require
that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said
materials are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are engaged in
selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner
Fernando.33 The mayor’s permit was under his name. Even his bail bond shows that Hhe lives in the same place.34 Moreover,
the mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the store. 35 While the mayor’s permit had
already expired, it does not negate the fact that Fernando owned and operated the establishment. It would be absurd to make
his failure to renew his business permit and illegal operation a shield from prosecution of an unlawful act. Furthermore, when
he preferred not to present contrary evidence, the things which he possessed were presumptively his. 36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials.
Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the
store attendant upon whom the search warrant was served.37 Tababan had no motive for testifying falsely against Estorninos
and we uphold the presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to and
treats with finality the findings of the trial court on the matter of credibility of witnesses, absent any palpable error or
arbitrariness in their findings.38 In our view, no reversible error was committed by the appellate court as well as the trial court in
finding the herein petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals
affirming the Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are
hereby AFFIRMED.

SO ORDERED.
 10

G.R. No. 191080 November 21, 2011

FREDRIK FELIX P. NOGALES, GIANCARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES, PRISCILA
B. CABRERA, Phil-Pacific Outsourcing Services CorpORATION and 3 x 8 Internet, represented by its proprietor
Michael Christopher A. Nogales, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and Presiding Judge TITA BUGHAO ALISUAG, Branch 1, Regional Trial Court,
Manila, Respondents.

DECISION

MENDOZA, J.:

At bench is a petition for certiorari under Rule 65 of the Rules of Court filed by petitioners Fredrik Felix P. Nogales, Giancarlo
P. Nogales, Rogelio P. Nogales, Melinda P. Nogales, Priscila B. Cabrera, Phil-Pacific Outsourcing Services Corp. and 3 x 8
Internet, represented by its proprietor Michael Christopher A. Nogales (petitioners) against respondents People of the
Philippines and Presiding Judge Tita Bughao Alisuag (Judge Alisuag) of Branch 1, Regional Trial Court, Manila (RTC).

The petition challenges the August 19, 2009 Decision1 of the Court of Appeals (CA), in CA-G.R. SP No. 105968, which
affirmed with modification the August 6, 2008 Order2 of Judge Alisuag of the RTC; and its January 25, 2010 Resolution, 3 which
denied petitioners’ motion for reconsideration.

THE FACTS:

On July 30, 2007, Special Investigator Garry Meñez (SI Meñez) of the National Bureau of Investigation (NBI)applied for a
search warrant before the RTC to authorize him and his fellow NBI agents or any peace officer to search the premises of
petitioner Phil-Pacific Outsourcing Services Corporation (Phil-Pacific) and to seize/confiscate and take into custody the
items/articles/objects enumerated in his application. The sworn application, docketed as Search Warrant Proceedings No. 07-
11685,4 partially reads:

SWORN APPLICATION FOR A SEARCH WARRANT

xxx xxx xxx

xxx xxx xxx

That he has been informed, verily believes and personally verified that JUN NICOLAS, LOREN NUESTRA, FREDRICK
FELIX P. NOGALES, MELINDA P. NOGALES, PRISCILA B. CABRERA and/or occupants PHIL-PACIFIC OUTSOURCING
SERVICES CORP. located at Mezzanine Flr., Glorietta De Manila Building, 776 San Sebastian St., University Belt,
Manila have in their possession/control and are concealed in the above-mentioned premises various material[s] used in the
creation and selling of pornographic internet website, to wit:

1. Computer Sets

2. Television Sets

3. Internet Servers

4. Fax Machines

5. Pornographic Films and other Pornographic Materials

6. Web Cameras
 11

7. Telephone Sets

8. Photocopying Machines

9. List of clients and

10. Other tools and materials used or intended to be used in the commission of the crime.

The application for Search Warrant No. 07-11685 of SI Meñez was acted upon by Judge Alisuag. On August 3, 2007, a
hearing was conducted wherein Judge Alisuag personally examined SI Meñez and two other witnesses in the form of
searching questions and their answers thereto were duly recorded by the court. The witnesses’ affidavits were also submitted
and marked as supporting evidence to the application for the issuance of a search warrant. On the same date of the hearing,
the application was granted and the corresponding Search Warrant, 5issued. The said search warrant is quoted as follows:

SEARCH WARRANT

TO: ANY PEACE OFFICER

It appearing to the satisfaction of the undersigned, after examining under oath applicant SI III GARY I. MEÑEZ of the Special
Task Force Division, National Bureau of Investigation, and his witnesses, ISABEL CORTEZ y ANDRADE of 167 5th Avenue,
Caloocan City and MARK ANTHONY C. SEBASTIAN of No. 32 Arlegui Street, San Miguel Quiapo, Manila that there are good
reasons to believe that VIOLATION OF ARTICLE 201 OF THE REVISED PENAL CODE, AS AMENDED IN RELATION TO
R.A. 8792 (ELECTRONIC COMMERCE ACT) has been committed and that JUN NICOLAS, LOREN NUESTRA, FREDERICK
(sic) FELIX P. NOGALES, GIAN CARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES, PRISCILA B.
CABRERA and/or OCCUPANTS OF PHIL. PACIFIC OUTSOURCING SERVICES CORPORATION located at Mezzanine
Floor, Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila, have in their possession and control of the
following:

1. Computer Sets

2. Television Sets

3. Internet Servers

4. Fax Machines

5. Pornographic Films and other Pornographic Materials

6. Web Cameras

7. Telephone Sets

8. Photocopying Machines

9. List of clients and

10. Other tools and materials used or intended to be used in the commission of the crime.

You are hereby commanded to make an immediate search any time of the DAY of the premises mentioned above which is
Mezzanine Floor, Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila and take possession of the
following:

1. Computer Sets

2. Television Sets

3. Internet Servers

4. Fax Machines
 12

5. Pornographic Films and other Pornographic Materials

6. Web Cameras

7. Telephone Sets

8. Photocopying Machines

9. List of clients and

10. Other tools and materials used or intended to be used in the commission of the crime.

and bring to this Court the said properties and persons to be dealt with as the law may direct. You are further directed to
submit a return within ten (10) days from today.

On August 8, 2007, SI Meñez submitted a Return of Search Warrant 6 to the RTC manifesting that in the morning of August 7,
2007, the operatives of the Special Task Force of the NBI implemented the said search warrant in an orderly and peaceful
manner in the presence of the occupants of the described premises and that the seized items were properly inventoried in the
Receipt/Inventory of Property Seized. The items seized were the following:

1. Ten (10) units of Central Processing Units (CPUs);

2. Ten (10) units of monitors;

3. Ten (10) units of keyboard;

4. Ten (10) units of mouse; and

5. Ten (10) units of AVRs.

The RTC then issued an order granting the prayer of SI Meñez to keep the seized items in the NBI evidence room and under
his custody with the undertaking to make said confiscated items available whenever the court would require them.

Aggrieved by the issuance of the said order, the named persons in the search warrant filed a Motion to Quash Search Warrant
and Return Seized Properties.7 In the said motion, petitioners cited the following grounds:

A. Respondents do not have programmers making, designing, maintaining, editing, storing, circulating, distributing, or
selling said websites or the contents thereof;

B. Respondents do not have any website servers;

C. Respondents do not own the websites imputed to them, which are actually located outside the Philippines, in
foreign countries, and are owned by foreign companies in those countries;

D. The testimony of the witnesses presented by the NBI are contradicted by the facts of the case as established by
documentary evidence;

E. The NBI withheld verifiable information from the Honorable Court and took advantage of the limited knowledge of
courts in general in order to obtain the search warrant for their personal intentions;

F. The NBI raided the wrong establishment; and

G. The element of publicity is absent.

On December 26, 2007, the RTC denied the motion 8 stating, among others, that:

1.) It cannot be said that publicity is not present. The Phil-Pacific Outsourcing Services Corp., is actually persuading
its clients, thru its agents (call center agents), to log-on to the pornographic sites listed in its web page. In that
manner, Phil-Pacific Outsourcing Services Corporation is advertising these pornographic web sites, and such
advertisement is a form of publicity.
 13

2.) Even if some of the listed items intended to be seized were not recovered from the place where the search was
made, it does not mean that there was no really crime being committed. As in fact, pornographic materials were
found in some of the computers which were seized.

3.) In the same way that the names listed in the Search Warrant were not arrested or not in the premises subject of
the search, it does not mean that there are no such persons existing nor there is no crime being committed.

4.) As a rule, Search Warrant may be issued upon existence of probable cause. "Probable cause for a search is
defined as such fact and circumstances which would lead a reasonable 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
reached." Hence, in implementing a Search Warrant, what matters most is the presence of the items ought to be
seized in the place to be searched, even in the absence of the authors of the crime committed.

5.) The Search Warrant was issued in accordance with Secs. 3 to 6, Rule 126 of the Revised Rules of Court. Search
Warrant may be quashed or invalidated if there is an impropriety in its issuance or irregularity in its enforcement.
Absent such impropriety or irregularity, quashal is not warranted.

Undaunted, petitioners moved for the reconsideration of the said order on the following grounds: (a) the trial court erred in
holding that there was no impropriety or irregularity in the issuance of the search warrant; (b) the trial court erred in holding
that there was no irregularity in its enforcement; and (c) the trial court erred in holding that publicity was present.

On February 19, 2008, petitioners requested the RTC to issue a subpoena duces tecum ad testificandum to SI Meñez and the
witnesses Isabel Cortez and Mark Anthony Sebastian directing them to appear, bring the records evidencing publicity of
pornographic materials and testify in the hearing set on March 7, 2008.

Meanwhile, in a resolution dated February 21, 2008, 9 the 3rd Assistant City Prosecutor recommended that the complaint for
violation of Article 20110 of the Revised Penal Code (RPC) against petitioners be dismissed due to insufficiency of evidence
and the same was approved by the City Prosecutor. Hence, on May 6, 2008, petitioners filed a Supplemental Motion to
Release Seized Properties11 manifesting that the complaint against them was dismissed, and that, for said reason, the State
had no more use of the seized properties.

On August 6, 2008, the RTC issued the assailed second order,12 which denied the motion for reconsideration filed by
petitioners. The RTC, however, partially granted the prayer of petitioners. Judge Alisuag wrote:

Be it noted that the proceedings held by this Court when it heard the Application for Search Warrant by NBI Special
Investigator Meñez is very much different [from] the case resolved by the Office of the City Prosecutor. The case before the
Office of the City Prosecutor, while the same [was] dismissed cannot be the ground to release the seized properties subject of
the Search Warrant issued by the Court. When the Court issued the Search Warrant, indeed, it found probable cause in the
issuance of the same, which is the only reason wherein Search Warrant may be issued.

On the case heard by the Office of the City Prosecutor, the Resolution has its own ground and reason to dismiss it.

xxx xxx xxx

That the subject of the Search Warrant which is now under the custody of the NBI [was] made subject of the case and as well
as the witnesses for that case which was resolved by the Office of the City Prosecutor is of no moment.

WHEREFORE, the Motion for Reconsideration is Denied.

The Motion to Release Seized Properties is partially granted.

Accordingly therefore, let the computer sets be hereby returned to the respondents. The CPU and all the rest of the softwares
containing obscene materials which were seized during the implementation of the valid Search Warrant are hereby retained in
the possession of the National Bureau of Investigation thru applicant Special Investigator Garry J. Meñez.

SO ORDERED.13

Not in conformity, petitioners sought relief with the CA via a special civil action for certiorari alleging that Judge Alisuag
committed grave abuse of discretion amounting to lack or excess of jurisdiction when she partially granted the motion of
petitioners for the release of the seized properties such that only the monitor sets were released but the CPUs and the
softwares were retained under the custody of the NBI.
 14

The CA affirmed with modification the assailed August 6, 2008 Order of the RTC. Thus:

WHEREFORE, in view of all the foregoing premises, the assailed order issued by the respondent Judge on August 6, 2008
is AFFIRMED with the MODIFICATION that the CPUs and softwares which were ordered to be retained by the NBI through SI
Meñez shall be released in favor of the petitioners herein with the condition that the hard disk be removed from the CPUs and
be destroyed. If the softwares are determined to be unlicensed or pirated copies, they shall be destroyed in the manner
allowed by law.

SO ORDERED.14 [Underscoring supplied]

The CA explained:

1.) It is undisputed that the seized computer units contained obscene materials or pornographic files. The hard disk technically
contains them but these files are susceptible to modification or limitation of status; thus, they can be erased or permanently
deleted from the storage disk. In this peculiar case, the obscene materials or pornographic files are stored in such a way that
they can be erased or deleted by formatting the hard disk without the necessity of destroying or burning the disk that contains
them. By structure, the hard drive contains the hard disk and the hard drive can be found in the CPU. These obscene
materials or pornographic files are only stored files of the CPU and do not permanently form part of the CPU which would call
for the destruction or much less retention of the same.

2.) Notwithstanding, with the advancement of technology, there are means developed to retrieve files from a formatted hard
disk, thus, the removal of the hard disk from the CPU is the reliable manner to permanently remove the obscene or
pornographic files. With regard to the softwares confiscated and also ordered to be retained by the NBI, nothing in the
evidence presented by the respondents shows that these softwares are pornographic tools or program customized just for
creating obscene materials. There are softwares which may be used for licit activities like photograph enhancing or video
editing and there are thousands of softwares that have legitimate uses. It would be different if the confiscated softwares are
pirated softwares contained in compact discs or the pre-installed softwares have no license or not registered; then, the NBI
may retain them. In the particular circumstances of this case, the return of the CPUs and softwares would better serve the
purposes of justice and expediency.

3.) The responsibilities of the magistrate do not end with the granting of the warrant but extend to the custody of the articles
seized. In exercising custody over these articles, the property rights of the owner should be balanced with the social need to
preserve evidence which will be used in the prosecution of a case. In the instant case, the complaint had been dismissed by
the prosecutor for insufficiency of evidence. Thus, the court had been left with the custody of highly depreciable merchandise.
More importantly, these highly depreciable articles would have been superfluous to be retained for the following reasons: (1) it
was found by the prosecutor that there was no sufficient evidence to prove that the petitioners violated Article 201 of the
Revised Penal Code in relation to R.A. 8792 (Electronic Commerce Act); (2) the obscene materials or pornographic files can
be deleted by formatting or removing the hard disk from the CPUs without destroying the entire CPU; and (3) the petitioners
did not dispute that the files found in the seized items were obscene or pornographic but the said devices are not obscene or
illegal per se. Hence, where the purpose of presenting as evidence the articles seized is no longer served, there is no
justification for severely curtailing the rights of a person to his property.

Petitioners filed a motion for reconsideration but it was denied in a resolution dated January 25, 2010. 15

Undeterred, petitioners filed a petition for certiorari 16 with this Court anchored on the following:

GROUNDS:

6.1. The decision by the Court of Appeals affirming the decision of the respondent trial judge constitutes grave abuse
of discretion amounting to lack or excess of jurisdiction, as it violates the constitutional proscription against
confiscation of property without due process of law, and there is no appeal nor any plain, speedy or adequate remedy
in the ordinary course of law.

6.2. Since the case involves pornography accessible in the internet, this is a case of first impression and current
importance.17 [Emphases ours]

ISSUE

Whether or not there was grave abuse of discretion on the part of the CA in ordering the removal and destruction of the hard
disks containing the pornographic and obscene materials.

THE COURT’S RULING

 15

Petitioners argue that there is no evidence showing that they were the source of pornographic printouts presented by the NBI
to the RTC or to the City Prosecutor of Manila in I.S. No. 07H-13530. Since the hard disks in their computers are not illegal per
se unlike shabu, opium, counterfeit money, or pornographic magazines, said merchandise are lawful as they are being used in
the ordinary course of business, the destruction of which would violate not only procedural, but substantive due process. 18

The argument of petitioners is totally misplaced considering the undisputed fact that the seized computer units contained
obscene materials or pornographic files. Had it been otherwise, then, petitioners’ argument would have been meritorious as
there could be no basis for destroying the hard disks of petitioners’ computer units.

While it may be true that the criminal case for violation of Article 201 of the Revised Penal Code was dismissed as there was
no concrete and strong evidence pointing to them as the direct source of the subject pornographic materials, it cannot be used
as basis to recover the confiscated hard disks. At the risk of being repetitious, it appears undisputed that the seized computer
units belonging to them contained obscene materials or pornographic files. Clearly, petitioners had no legitimate expectation of
protection of their supposed property rights.

The CA is correct in stating that the removal of the hard disk from the CPU is a reliable way of permanently removing the
obscene or pornographic files.1âwphi1 Significantly, Presidential Decree (PD) No. 969 is explicit. Thus:

Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints, engravings, sculptures, paintings, or
other materials involved in the violation referred to in Section 1 hereof shall be governed by the following rules:

a. Upon conviction of the offender, to be forfeited in favor of the government to be destroyed.

b. Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral
literature, films, prints, engravings, sculpture, paintings or other materials and other articles involved in the
violation referred to in Section 1 hereof shall nevertheless be forfeitedin favor of the government to
be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary. [Emphasis and underscoring
supplied]

Clearly, the provision directs the forfeiture of all materials involved in violation of the subject law. The CA was lenient with
petitioners in modifying the ruling of the RTC in that the CPUs and softwares, which were initially ordered to be retained by the
NBI, should be released in their favor with only the hard disk removed from the CPUs and destroyed. If the softwares are
determined to be violative of Article 201 of the RPC, unlicensed or pirated, they should also be forfeited and destroyed in the
manner allowed by law. The law is clear. Only licensed softwares that can be used for legitimate purposes should be returned
to petitioners.

To stress, P.D. No. 969 mandates the forfeiture and destruction of pornographic materials involved in the violation of Article
201 of the Revised Penal Code, even if the accused was acquitted.1awp++i1

Taking into account all the circumstances of this case, the Court holds that the destruction of the hard disks and the softwares
used in any way in the violation of the subject law addresses the purpose of minimizing if not totally eradicating pornography.
This will serve as a lesson for those engaged in any way in the proliferation of pornography or obscenity in this country. The
Court is not unmindful of the concerns of petitioners but their supposed property rights must be balanced with the welfare of
the public in general.

WHEREFORE, the petition is DENIED. The August 19, 2009 Court of Appeals Decision is AFFIRMED WITH MODIFICATION
in that only the CPUs and those softwares determined to be licensed and used for legitimate purposes shall be returned in
favor of the petitioners. The hard disk drives containing the pornographic materials and the softwares used in any way in
violation of Article 201 of the Revised Penal Code, unlicensed or pirated shall be forfeited in favor of the Government and
destroyed.

SO ORDERED.