EQUI-ASIA PLACEMENT, INC.
VS DFA AND DOLE Upon verification by the WEO-POEA on its data base, it was
G.R. No. 152214, September 19, 2006
This is a Petition for Review on Certiorari of the Decision dated 4
October 2001[1] and Resolution dated 18 February 2002 of the Court
of Appeals in CA-G.R. SP No. 61904. The Decision denied
petitioners petition for certiorari while the Resolution denied its
Motion for Reconsideration.
The Court of Appeals summarized the facts of this case in this wise:
On September 16, 2000, Manny dela Rosa Razon, a native of
Lemery, Batangas and an overseas Filipino worker, died of acute
cardiac arrest while asleep at the dormitory of the Samsong Textile
Processing Factory in South Korea. Informed thereof, the Philippine
Overseas Labor Office (POLO) at South Korea immediately relayed
the incident to the Philippine Embassy in South Korea. Forthwith, the
[Labor] Attach of the Philippine Embassy dispatched a letter to
Eleuterio N. Gardiner, administrator of the Overseas Workers
Welfare Administration (OWWA). The letter reads:
VERY URGENT, POLO has recently received a report that OFW
Manny dela Rosa RAZON, an undocumented worker, died last
Saturday, 16 September, from an apparent pancreatic attack or
bangungot.
According to the verbal reports of Moises and Ronald Recarde,
Mannys co-workers, he was found already lifeless inside their
quarters at around 11:00 in the morning of the above date. They
rushed him to Uri Hospital where the Doctor declared him dead on
arrival.
Per information gathered, the deceased is single, 29 years old, from
Bukal, Lemery, Batangas. His next-of-kins are Mrs. Rowena Razon
(Auntie) and Mr. Razon (Uncle) with telephone number (043)411-
2308.
POLO is awaiting signed statements from the aforementioned
workers who promised to send it by fax this afternoon.
We are also coordinating with the deceaseds employer for
documentation requirements and financial assistance for the
repatriation of the remains.
We will highly appreciate if Home Office could advise the next-of-
kins of the urgent need to issue a Special Power of Attorney (SPA) to
facilitate the repatriation requirements of the subject.
In anticipation of the next-of-kins likely move to seek financial
assistance from OWWA for the repatriation of their loved [one],
please be advised in advance that we will need about US$4,000.00
to repatriate the cadaver (to include hospital and morgue costs) to
Manila. xxx
In turn, the OWWA, through Atty. Cesar L. Chavez, indorsed the
matter, for appropriate action, to Director R. Casco of the Welfare
Employment Office of the Philippine Overseas Employment
Administration (WEO-POEA).
discovered that Manny Razon was recruited and deployed by
petitioner Equi-Asia Placement, Inc., and was sent to South Korea on
April 3, 2000 to work-train at Yeongjin Machinery, Inc. Thereupon,
POEA addressed the herein first assailed telegram-directive dated
September 22, 2000 to the President/General Manager of the
petitioner. We quote the telegram:
PLEASE PROVIDE PTA [Prepaid Ticket Advice] FOR THE
REPATRIATION OF REMAINS AND BELONGINGS OF OFW
MANNY DELA ROSA RAZON AS PER REQUEST OF PHILIPPINE
EMBASSY, KOREA, YOU CAN COORDINATE WITH YOUR
FOREIGN EMPLOYER AND TO WAD/OWWA (MLA) AS REGARDS
TO THIS MATTER. YOU ARE GIVEN TWO (2) DAYS FROM
RECEIPT HEREOF WITHIN WHICH TO PROVIDE SAID TICKET
AND ASSISTANCE, KINDLY SUBMIT YOUR REPORT TO
ASSISTANCE AND WELFARE DIVISION (AWD), 2/F POEA,
FAILURE TO DO SO WILL CONSTRAIN US TO IMPOSE
APPROPRIATE SANCTION UNDER OUR RULES
Responding thereto, petitioner, thru its President Daniel Morga, Jr.,
faxed on September 26, 2000 the following message to the
Assistance and Welfare Division of the POEA:
In connection with your telegram, dated 09/22/2000, requiring us to
report the circumstances surrounding the death of OFW MANNY
DELA ROSA RAZON in Korea and requesting us to issue a PTA,
etc., for the repatriation of the remains of said OFW, this is to report
to your good office the following:
1. The deceased was deployed by our agency on April 3, 2000 to
Yeongjin Machine Company in South Korea;
2. He violated his employment/training/dispatching contracts on June
25, 2000 by unlawfully escaping/running away (TNT) from his
company assignment without prior KFSMB authorization and
working/staying in unknown company/place;
3. He allegedly died of bangungot thereafter;
In view thereof, we cannot heed your requests as embodied in your
telegram. However, his relatives can avail of the benefits provided for
by OWWA in cases involving undocumented/illegal Filipino workers
abroad.
Trusting for your kind understanding
On the same date September 26, 2000 Director Ricardo R. Casco of
the WEO-POEA sent to the petitioner the herein second assailed
letter-directive, which pertinently reads:
We have received a copy of your fax message dated 26 September
2000 as regards to your response to our request for PTA for
aforesaid deceased OFW. Nevertheless, may we remind you that
pursuant to Sections 52, 53, 54 and 55 of the Implementing Rules
Governing RA 8042, otherwise known as the Migrant Workers and
Overseas Filipino Act of 1995, the repatriation of OFW, his/her
remains and transport of his personal effects is the primary
responsibility of the principal or agency and to immediately advance
the cost of plane fare without prior determination of the cause of
workers repatriation. The Rules further provide for the procedure to
be followed in cases when the foreign employer/agency fails to
provide for the cost of the repatriation, compliance of which is
punishable by suspension of the license of the agency or such
sanction as the Administration shall deem proper. Hence, you are
required to provide the PTA for the deceased OFW in compliance
with the requirement in accordance with R.A. 8042. You are given
forty-eight (48) hours upon receipt hereof within which to provide said
ticket. Failure in this regard will constrain us to impose the
appropriate sanction under our rules.
On September 27, 2000, petitioner wrote back Director Ricardo R.
Casco, thus:
In connection with your fax letter dated September 26, 2000, re: the
repatriation of the remains of the deceased, ex-trainee (OFW)
MANNY DELA ROSA RAZON, please be informed that the
provisions of Section 53 as well as, and in relation to, Section 55 of
the Omnibus Rules and Regulations Implementing the Migrant
Workers and Overseas Filipinos Act of 1995 on the matters covering
the following:
1. The responsibility of the agency to advance the cost of plane fare
without prior determination of the cause of the deceased workers
termination.
2. The recovery of the same costs from the estate of the dead
worker before the NLRC.
3. The action to be imposed by POEA for non-compliance
therewith within 48 hours are violative of due process and/or the
principle on due delegation of power.
This is so because Sec. 15 of R.A. 8042 clearly contemplates prior
notice and hearing before responsibility thereunder could be
established against the agency that sets up the defense of sole fault
in avoidance of said responsibility -. Besides, the sections in question
unduly grant the powers to require advance payment of the plane
fare, to impose the corresponding penalty of suspension in case of
non-compliance therewith, within 48 hours and to recover said
advance payment from the dead workers estate upon the return of
his remains to the country before the NLRC, when the law itself does
not expressly provide for the grant of such powers.
Please provide us immediately with the death certificate/post
mortem report/police report pertinent to above as proof of death and
cause thereof.
Nonetheless, and apprehensive of the adverse repercussions which
may ensue on account of its non-compliance with the directive,
petitioner, on September 29, 2000, advanced under protest the costs
for the repatriation of the remains of the late Manny dela Rosa
Razon.
Thereafter, petitioner went to this Court via the instant petition for
certiorari, posing, for Our consideration, the sole issue of
WHETHER OR NOT SECTIONS 52, 53, 54 AND 55 OF THE
OMNIBUS RULES AND REGULATIONS IMPLEMENTING THE
MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995
(R.A. 8042), ISSUED BY DFA AND POEA, WHICH POEA
SUMMARILY ORDERED THE HEREIN PETITIONER TO COMPLY
VIZ-A-VIZ THE PAYMENT IN ADVANCE OF THE EXPENSES FOR
THE REPATRIATION OF THE REMAINS OF A DECEASED
WORKER-TRAINEE WHO, AT THE TIME OF HIS DEATH, HAS NO
EXISTING EMPLOYMENT (DISPATCHING) CONTRACT WITH
EITHER SAID PETITIONER OR HIS FOREIGN PRINCIPAL AND
NO VALID VISA OR IS NOT WORKING WITH THE FOREIGN
PRINCIPAL TO WHICH PETITIONER DEPLOYED HIM, IS ILLEGAL
AND/OR VIOLATIVE OF DUE PROCESS SUCH THAT POEA
ACTED WITHOUT [OR IN] EXCESS OF ITS JURISDICTION
AND/OR IN GRAVE ABUSE OF DISCRETION IN ISSUING SAID
ORDER TO PAY SAID EXPENSES.[2]
On 4 October 2001, the Court of Appeals rendered the Decision
which is now the subject of the present petition. The dispositive
portion of the Court of Appeals Decision states:
WHEREFORE, for lack of merit, the instant petition is DENIED and
is accordingly DISMISSED.[3]
In dismissing the petition for certiorari, the Court of Appeals stated
that petitioner was mainly accusing the Philippine Overseas
Employment Administration (POEA) of grave abuse of discretion
when it ordered petitioner to pay, in advance, the costs for the
repatriation of the remains of the deceased Manny dela Rosa Razon.
The Court of Appeals ruled that the POEA did not commit any grave
abuse of discretion as its directives to petitioner were issued
pursuant to existing laws and regulations.[4] It likewise held that a
petition for certiorari, which was the remedy availed of by petitioner,
is not the proper remedy as the same is only available when there is
no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law.[5] Section 62 of the Omnibus Rules and
Regulations Implementing the Migrant Workers and Overseas
Filipinos Act of 1995 or Republic Act 8042 (Omnibus Rules) states
that the Labor Arbiters of NLRC shall have the original and exclusive
jurisdiction to hear and decide all claims arising out of employer-
employee relationship or by virtue of any law or contract involving
Filipino workers for overseas deployment including claims for actual,
moral, exemplary and other forms of damages, subject to the rules
and procedures of the NLRC. There is, therefore, an adequate
remedy available to petitioner.
Lastly, the Court of Appeals declared that it could not strike down as
unconstitutional Sections 52, 53, 54, and 55 of the Omnibus Rules as
the unconstitutionality of a statute or rules may not be passed upon
unless the issue is directly raised in an appropriate proceeding.[6]
In the present recourse, petitioner submits the following issues for
our consideration:
1. The Court of Appeals erred in the appreciation of the issue as it
mistakenly considered, in dismissing the petition before it, that
petitioner is contesting the compliance and conformity of the POEA
directives with Sections 52, 53, 54, and 55 of the Omnibus Rules and
Regulations implementing in particular Section 15 of RA 8042;
2. The Court of Appeals, in dismissing the petition, again erred in
ruling that constitutional questions cannot be passed upon and
adjudged in a special civil action for certiorari under Rule 65 of the
1997 Rules of Civil Procedure;
3. The Court of Appeals erred in not holding that, under the facts of
the case that gave rise to the petition before it, the same sections of
the said rules and regulations are illegal, invalid and/or violative of
the right of petitioner to due process of law and, therefore, the POEA
directives issued pursuant thereto constitute acts committed without,
or in excess of, jurisdiction and/or in grave abuse of discretion.[7]
In Our Resolution of 20 November 2002, we gave due course to the
present petition and directed the parties to submit their respective
memoranda.[8] On 28 August 2006, we resolved to dispense with the
memorandum of the estate/heirs of deceased Manny dela Rosa
Razon.
At the center of this petition are the following provisions of the
omnibus rules:
Section 52. Primary Responsibility for Repatriation. The repatriation
of the worker, or his/her remains, and the transport of his/her
personal effects shall be the primary responsibility of the principal or
agency which recruited or deployed him/her abroad. All costs
attendant thereto shall be borne by the principal or the agency
concerned.
Section 53. Repatriation of Workers. The primary responsibility to
repatriate entails the obligation on the part of principal or agency to
advance the cost of plane fare and to immediately repatriate the
worker should the need for it arise, without a prior determination of
the cause of the termination of the workers employment. However,
after the worker has returned to the country, the principal or agency
may recover the cost of repatriation from the worker if the termination
of employment was due solely to his/her fault.
Every contract for overseas employment shall provide for the
primary responsibility of agency to advance the cost of plane fare,
and the obligation of the worker to refund the cost thereof in case
his/her fault is determined by the Labor Arbiter.
Section 54. Repatriation Procedure. When a need for repatriation
arises and the foreign employer fails to provide for it cost, the
responsible personnel at site shall simultaneously notify OWWA and
the POEA of such need. The POEA shall notify the agency
concerned of the need for repatriation. The agency shall provide the
plane ticket or the prepaid ticket advice (PTA) to the Filipinos
Resource Center or to the appropriate Philippine Embassy; and
notify POEA of such compliance. The POEA shall inform OWWA of
the action of the agency.
Section 55. Action on Non-Compliance. If the employment agency
fails to provide the ticket or PTA within 48 hours from receipt of the
notice, the POEA shall suspend the license of the agency or impose
such sanctions as it may deem necessary. Upon notice from the
POEA, OWWA shall advance the costs of repatriation with recourse
to the agency or principal. The administrative sanction shall not be
lifted until the agency reimburses the OWWA of the cost of
repatriation with legal interest.
Said provisions, on the other hand, are supposed to implement
Section 15 of Republic Act No. 8042[9] which provides:
SEC. 15. Repatriation of Workers; Emergency Repatriation Fund.
The repatriation of the worker and the transport of his personal
belongings shall be the primary responsibility of the agency which,
recruited or deployed the worker overseas. All costs attendant to
repatriation shall be borne by or charged to the agency concerned
and/or its principal. Likewise, the repatriation of remains and
transport of the personal belongings of a deceased worker and all
costs attendant thereto shall be borne by the principal and/or the
local agency. However, in cases where the termination of
employment is due solely to the fault of the worker, the
principal/employer or agency shall not in any manner be responsible
for the repatriation of the former and/or his belongings.
Petitioner contends that the Court of Appeals misappreciated the
issue it presented in its petition for certiorari when, instead of
resolving whether Sections 52, 53, 54, and 55 of the Omnibus Rules
are illegal and violative of due process, it merely confined itself to the
question of whether or not the POEA committed grave abuse of
discretion in issuing its directives of 22 September 2000 and 27
September 2000.
Petitioner also contends that, contrary to the finding of the Court of
Appeals, a special civil action for certiorari is the appropriate remedy
to raise constitutional issues.
Also, petitioner insists that the subject portions of the omnibus rules
are invalid on the ground that Section 15 of Republic Act No. 8042
does not impose on a recruitment agency the primary responsibility
for the repatriation of a deceased Overseas Filipino Worker (OFW),
while Section 52 of the Omnibus Rules unduly imposes such burden
on a placement agency.
Moreover, petitioner argues that the word likewise at the start of the
third sentence of Section 15 of Republic Act No. 8042 is used merely
as a connective word indicating the similarity between a recruitment
agencys financial obligation in the repatriation of living and a
deceased OFW. It does not, however, necessarily make a placement
agency primarily responsible for the repatriation of a deceased OFW
unlike in the case of an OFW who is alive.
As for Section 53 of the Omnibus Rules, petitioner submits that the
same is invalid as Section 15 of Republic Act No. 8042 clearly states
that a placement agency shall not in any manner be responsible for
the repatriation of the deceased OFW and his or her belongings
should the termination of the OFWs employment be due to his or her
fault. However, as Section 53 of the Omnibus Rules stipulates that a
placement agency or principal shall bear the primary responsibility of
repatriating an OFW and of advancing the payment for his or her
plane fare, the omibus rules, as far as this section is concerned, is an
invalid exercise of legislative power by an administrative agency.
In addition, petitioner claims Section 53 of the Omnibus Rules
violates the due process clause of the constitution as it deprives the
deploying agency of the right to prior notice and hearing through
which it can prove that it should not bear the burden of repatriating
an OFW.

Finally, petitioner points out that it should be the Overseas Workers
Welfare Administration which should advance the costs of
repatriation of the deceased Razon with the resources coming out of
the emergency repatriation fund of said agency.
The Solicitor General for its part counters that Sections 52, 53, 54,
and 55 of the Omnibus Rules are valid quasi-legislative acts of
respondents Department of Foreign Affairs and Department of Labor
and Employment.[10] Because of this, the requirements of prior
notice and hearing are not essential. Besides, there are cases where
even in the exercise of quasi-judicial power, administrative agencies
are allowed, sans prior notice and hearing, to effectuate measures
affecting private property, such as:
1) [F]or the summary abatement of nuisance per se which affects
the immediate safety of persons and property, or 2) in summary
proceedings of distraint and levy upon the property of delinquent
taxpayers in the collection of internal revenue taxes, fees or charges
or any increment thereto, or 3) in the preventive suspension of a
public officer pending investigation. x x x.[11]
The Solicitor General also adds that since petitioner is engaged in
the recruitment of Filipino workers for work abroad, the nature of its
business calls for the exercise of the states police power in order to
safeguard the rights and welfare of the Filipino laborers. One such
measure is the primary responsibility imposed upon placement
agencies with regard to the repatriation of an OFW or of his remains.
The Solicitor General also argues that the wording of Section 15 of
Republic Act No. 8042 leaves no doubt that a recruitment agency
shall bear the primary responsibility for the repatriation of an OFW
whether the latter is dead or alive.
Lastly, the Solicitor General insists that actions assailing the validity
of implementing rules and regulations are within the original
jurisdiction of the regional trial courts.
We shall first address the procedural question involved in the present
petition.
There is no denying that regular courts have jurisdiction over cases
involving the validity or constitutionality of a rule or regulation issued
by administrative agencies. Such jurisdiction, however, is not limited
to the Court of Appeals or to this Court alone for even the regional
trial courts can take cognizance of actions assailing a specific rule or
set of rules promulgated by administrative bodies. Indeed, the
Constitution vests the power of judicial review or the power to declare
a law, treaty, international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation in the courts,
including the regional trial courts.[12]
Section 1, Rule 65 of the 1997 Rules of Civil Procedure states:
SECTION 1. Petition for Certiorari. When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.
The petition shall be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings
and documents relevant and pertinent thereto, and a sworn
certification of non-forum shopping as provided in the third paragraph
of Section 3, Rule 46.
From this, it is clear that in order for a petition for certiorari to
prosper, the following requisites must be present: (1) the writ is
directed against a tribunal, a board or an officer exercising judicial or
quasi-judicial functions; (2) such tribunal, board or officer has acted
without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction; and (3) there is no appeal
or any plain, speedy and adequate remedy in the ordinary course of
law.
It bears emphasizing that administrative bodies are vested with two
basic powers, the quasi-legislative and the quasi-judicial.[13] In
Abella, Jr. v. Civil Service Commission,[14] we discussed the nature
of these powers to be
In exercising its quasi-judicial function, an administrative body
adjudicates the rights of persons before it, in accordance with the
standards laid down by the law. The determination of facts and the
applicable law, as basis for official action and the exercise of judicial
discretion, are essential for the performance of this function. On
these considerations, it is elementary that due process requirements,
as enumerated in Ang Tibay, must be observed. These requirements
include prior notice and hearing.
On the other hand, quasi-legislative power is exercised by
administrative agencies through the promulgation of rules and
regulations within the confines of the granting statute and the
doctrine of non-delegation of certain powers flowing from the
separation of the great branches of the government. Prior notice to
and hearing of every affected party, as elements of due process, are
not required since there is no determination of past events or facts
that have to be established or ascertained. As a general rule, prior
notice and hearing are not essential to the validity of rules or
regulations promulgated to govern future conduct.
In this case, petitioner assails certain provisions of the Omnibus
Rules. However, these rules were clearly promulgated by
respondents Department of Foreign Affairs and Department of Labor
and Employment in the exercise of their quasi-legislative powers or
the authority to promulgate rules and regulations. Because of this,
petitioner was, thus, mistaken in availing himself of the remedy of an
original action for certiorari as obviously, only judicial or quasi-judicial
acts are proper subjects thereof. If only for these, the petition
deserves outright dismissal. Be that as it may, we shall proceed to
resolve the substantive issues raised in this petition for review in
order to finally remove the doubt over the validity of Sections 52, 53,
54, and 55 of the Omnibus Rules.
It is now well-settled that delegation of legislative power to various
specialized administrative agencies is allowed in the face of
increasing complexity of modern life. Given the volume and variety of
interactions involving the members of todays society, it is doubtful if
the legislature can promulgate laws dealing with the minutiae aspects
of everyday life. Hence, the need to delegate to administrative
bodies, as the principal agencies tasked to execute laws with respect contests its liability for repatriation. As aptly pointed out by the
to their specialized fields, the authority to promulgate rules and Solicitor General
regulations to implement a given statute and effectuate its
policies.[15] All that is required for the valid exercise of this power of Such a situation is unacceptable.
subordinate legislation is that the regulation must be germane to the
objects and purposes of the law; and that the regulation be not in 24. This is the same reason why repatriation is made by law an
contradiction to, but in conformity with, the standards prescribed by obligation of the agency and/or its principal without the need of first
the law.[16] Under the first test or the so-called completeness test, determining the cause of the termination of the workers employment.
the law must be complete in all its terms and conditions when it Repatriation is in effect an unconditional responsibility of the agency
leaves the legislature such that when it reaches the delegate, the and/or its principal that cannot be delayed by an investigation of why
only thing he will have to do is to enforce it.[17] The second test or the worker was terminated from employment. To be left stranded in a
the sufficient standard test, mandates that there should be adequate foreign land without the financial means to return home and being at
guidelines or limitations in the law to determine the boundaries of the the mercy of unscrupulous individuals is a violation of the OFWs
delegates authority and prevent the delegation from running riot.[18] dignity and his human rights. These are the same rights R.A. No.
8042 seeks to protect.[19]
We resolve that the questioned provisions of the Omnibus Rules
meet these requirements. As for the sufficiency of standard test, this Court had, in the past,
accepted as sufficient standards the following: public interest, justice
Basically, petitioner is impugning the subject provisions of the and equity, public convenience and welfare, and simplicity, economy
Omnibus Rules for allegedly expanding the scope of Section 15 of and welfare.[20]
Republic Act No. 8042 by: first, imposing upon it the primary
obligation to repatriate the remains of the deceased Razon including In this case, we hold that the legislatures pronouncements that
the duty to advance the cost of the plane fare for the transport of Republic Act No. 8042 was enacted with the thought of upholding the
Razons remains; and second, by ordering it to do so without prior dignity of the Filipinos may they be here or abroad and that the State
determination of the existence of employer-employee relationship shall at all times afford full protection to labor, both here and abroad,
between itself and Razon. meet the requirement and provide enough guidance for the
formulation of the omnibus rules.
Petitioners argument that Section 15 does not provide that it shall be
primarily responsible for the repatriation of a deceased OFW is WHEREFORE, the Petition for Review is DENIED. The Court of
specious and plain nitpicking. While Republic Act No. 8042 does not Appeals Decision dated 4 October 2001 and Resolution dated 18
expressly state that petitioner shall be primarily obligated to transport February 2002 are hereby AFFIRMED. With costs.
back here to the Philippines the remains of the deceased Razon,
nevertheless, such duty is imposed upon him as the statute clearly
dictates that the repatriation of remains and transport of the personal
belongings of a deceased worker and all costs attendant thereto shall
be borne by the principal and/or the local agency. The mandatory
nature of said obligation is characterized by the legislatures use of
the word shall. That the concerned government agencies opted to
demand the performance of said responsibility solely upon petitioner
does not make said directives invalid as the law plainly obliges a
local placement agency such as herein petitioner to bear the burden
of repatriating the remains of a deceased OFW with or without
recourse to the principal abroad. In this regard, we see no reason to
invalidate Section 52 of the omnibus rules as Republic Act No. 8042
itself permits the situation wherein a local recruitment agency can be
held exclusively responsible for the repatriation of a deceased OFW.

Nor do we see any reason to stamp Section 53 of the Omnibus

Rules as invalid for allegedly contravening Section 15 of the law
which states that a placement agency shall not be responsible for a
workers repatriation should the termination of the employer-
employee relationship be due to the fault of the OFW. To our mind,
the statute merely states the general principle that in case the
severance of the employment was because of the OFWs own
undoing, it is only fair that he or she should shoulder the costs of his
or her homecoming. Section 15 of Republic Act No. 8042, however,
certainly does not preclude a placement agency from establishing the
circumstances surrounding an OFWs dismissal from service in an
appropriate proceeding. As such determination would most likely
take some time, it is only proper that an OFW be brought back here
in our country at the soonest possible time lest he remains stranded
in a foreign land during the whole time that recruitment agency
 FINMAN VS INOCENCIO
Facts:
Pan Pacific Overseas is a recruitment agency which offers jobs
abroad duly registered with the POEA. Finman General is acting as
Pan Pacific’s surety (as required by POEA rules and Art. 31 of the
Labor Code). Pan Pacific was sued by William Inocencio and 3
others for alleged violation of Article 32 and 34 of the Labor Code.
Inocencio alleged that Pan Pacific charged and collected fees but
failed to provide employment abroad.
POEA ruled in favor of Inocencio et al and had impleaded Finman
(upon request of Inocencio) in the complaint as well (Pan Pacific
changed business address without prior notice to POEA). The Labor
Secretary affirmed POEA’s ruling. Finman General asserts that it
should not be impleaded in the case because it is not a party to the
contract between Pan Pacific and Inocencio et al.
Issue:
Whether or not Finman General is solidarily liable in the case at bar.
Held:
Yes. Since Pan Pacific had thoughtfully refrained from notifying the
POEA of its new address and from responding to the complaints,
petitioner Finman may well be regarded as an indispensable party to
the proceedings before the POEA. Whether Finman was an
indispensable or merely a proper party to the proceedings, the SC
held that the POEA could properly implead it as party respondent
either upon the request of Inocencio et al or motu propio. Such is the
situation under the Revised Rules of Court.
Finman General is solidarily liable. Under Section 176 of the
Insurance Code, as amended, the liability of a surety in a surety bond
(Finman) is joint and several with the principal obligor (Pan Pacific).
Further, Article 31 of the Labor Code provides:
Art. 31. Bonds. — All applicants for license or authority shall post
such cash and surety bonds as determined by the Secretary of Labor
to guarantee compliance with prescribed recruitment procedures,
rules and regulations, and terms and, conditions of employment as
appropriate.
The Secretary of Labor shall have the exclusive power to determine,
decide, order or direct payment from, or application of, the cash and
surety bond for any claim or injury covered and guaranteed by the
bonds.
Eastern Assurance vs Secretary of Labor
Labor Standards – Liability of Sureties – POEA Rules –
Overseas Employment
Facts:
J&B Manpower is an overseas employment agency registered with
the POEA and Eastern Assurance was its surety beginning January
1985. From 1983 to December 1985, J&B recruited 33 persons but
none of them were ever deployed. These 33 persons sued J&B and
the POEA as well as the Secretary of Labor ruled in favor of the 33
workers and ordered J&B to refund them (with Eastern Assurance
being solidarily liable). Eastern Assurance assailed the ruling
claiming that POEA and the Secretary of Labor have no jurisdiction
over non-employees (since the 33 were never employed, in short, no
employer-employee relations).
Issue:
Whether or not Eastern Assurance can be held liable in the case at
bar.
Held:
Yes. But only for the period covering from January 1985 when the
surety took effect (as already held by the Labor Secretary). The
Secretary of Labor was given power by Article 34 (Labor Code) and
Section 35 and 36 of EO 797 (POEA Rules) to “restrict and regulate
the recruitment and placement activities of all agencies,” but also to
“promulgate rules and regulations to carry out the objectives and
implement the provisions” governing said activities.
Implicit in these powers is the award of appropriate relief to the
victims of the offenses committed by the respondent agency or
contractor, specially the refund or reimbursement of such fees as
may have been fraudulently or otherwise illegally collected, or such
money, goods or services imposed and accepted in excess of what is
licitly prescribed. It would be illogical and absurd to limit the sanction
on an offending recruitment agency or contractor to suspension or
cancellation of its license, without the concomitant obligation to repair
the injury caused to its victims.
Though some of the cases were filed after the expiration of the surety
bond agreement between J&B and Eastern Assurance, notice was
given to J&B of such anomalies even before said expiration. In this
connection, it may be stressed that the surety bond provides that
notice to the principal is notice to the surety. Besides, it has been
held that the contract of a compensated surety like respondent
Eastern Assurance is to be interpreted liberally in the interest of the
promises and beneficiaries rather than strictly in favor of the surety.
MANUELA S. CATAN/M.S. CATAN PLACEMENT AGENCY, vs.
THE NATIONAL LABOR RELATIONS COMMISSION, PHILIPPINE
OVERSEAS EMPLOYMENT ADMINISTRATION and FRANCISCO
D. REYES, respondents.
Petitioner, in this special civil action for certiorari, alleges grave
abuse of discretion on the part of the National Labor Relations
Commission in an effort to nullify the latters resolution and thus free
petitioner from liability for the disability suffered by a Filipino worker it
recruited to work in Saudi Arabia. This Court, however, is not
persuaded that such an abuse of discretion was committed. This
petition must fail.
The facts of the case are quite simple.
Petitioner, a duly licensed recruitment agency, as agent of Ali and
Fahd Shabokshi Group, a Saudi Arabian firm, recruited private
respondent to work in Saudi Arabia as a steelman.
The term of the contract was for one year, from May 15,1981 to May
14, 1982. However, the contract provided for its automatic renewal:
FIFTH: The validity of this Contract is for ONE YEAR commencing
from the date the SECOND PARTY assumes hill port. This Contract
is renewable automatically if neither of the PARTIES notifies the
other PARTY of his wishes to terminate the Contract by at least ONE
MONTH prior to the expiration of the contractual period. [Petition, pp.
6-7; Rollo, pp. 7-8].
The contract was automatically renewed when private respondent
was not repatriated by his Saudi employer but instead was assigned
to work as a crusher plant operator. On March 30, 1983, while he
was working as a crusher plant operator, private respondent's right
ankle was crushed under the machine he was operating.
On May 15, 1983, after the expiration of the renewed term, private
respondent returned to the Philippines. His ankle was operated on at
the Sta. Mesa Heights Medical Center for which he incurred
expenses.
On September 9, 1983, he returned to Saudi Arabia to resume his
work. On May 15,1984, he was repatriated.
Upon his return, he had his ankle treated for which he incurred
further expenses.
On the basis of the provision in the employment contract that the
employer shall compensate the employee if he is injured or
permanently disabled in the course of employment, private
respondent filed a claim, docketed as POEA Case No. 84-09847,
against petitioner with respondent Philippine Overseas Employment
Administration. On April 10, 1986, the POEA rendered judgment in
favor of private respondent, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the
complainant and against the respondent, ordering the latter to pay to
the complainant:
1. SEVEN THOUSAND NINE HUNDRED EIGHTY-FIVE
PESOS and 60/100 (P7,985.60), Philippine currency, representing
disability benefits;
2. TWENTY-FIVE THOUSAND NINETY-SIX Philippine pesos
and 20/100 (29,096.20) representing reimbursement for medical
expenses;
3. Ten percent (10%) of the abovementioned amounts as and
for attorney's fees. [NLRC Resolution, p. 1; Rollo, p. 16].
On appeal, respondent NLRC affirmed the decision of the POEA in a
resolution dated December 12, 1986.
Not satisfied with the resolution of the POEA, petitioner instituted the
instant special civil action for certiorari, alleging grave abuse of
discretion on the part of the NLRC.
1. Petitioner claims that the NLRC gravely abused its
discretion when it ruled that petitioner was liable to private
respondent for disability benefits since at the time he was injured his
original employment contract, which petitioner facilitated, had already
expired. Further, petitioner disclaims liability on the ground that its
agency agreement with the Saudi principal had already expired when
the injury was sustained.
There is no merit in petitioner's contention.
Private respondents contract of employment can not be said to have
expired on May 14, 1982 as it was automatically renewed since no
notice of its termination was given by either or both of the parties at
least a month before its expiration, as so provided in the contract
itself. Therefore, private respondent's injury was sustained during the
lifetime of the contract.
A private employment agency may be sued jointly and solidarily with
its foreign principal for violations of the recruitment agreement and
the contracts of employment:
Sec. 10. Requirement before recruitment.— Before recruiting any
worker, the private employment agency shall submit to the Bureau
the following documents:
(a) A formal appointment or agency contract executed by a
foreign-based employer in favor of the license holder to recruit and
hire personnel for the former ...
xxx xxx xxx
2. Power of the agency to sue and be sued jointly and
solidarily with the principal or foreign-based employer for any of the
violations of the recruitment agreement and the contracts of
employment. [Section 10(a) (2) Rule V, Book I, Rules to Implement
the Labor Code].
Thus, in the recent case of Ambraque International Placement &
Services v. NLRC [G.R. No. 77970, January 28,1988], the Court
ruled that a recruitment agency was solidarily liable for the unpaid
salaries of a worker it recruited for employment in Saudi Arabia.
Even if indeed petitioner and the Saudi principal had already severed
their agency agreement at the time private respondent was injured,
petitioner may still be sued for a violation of the employment contract
because no notice of the agency agreement's termination was given
to the private respondent:
Art 1921. If the agency has been entrusted for the purpose of contra
with specified persons, its revocation shall not prejudice the latter if
they were not given notice thereof. [Civil Code].
In this connection the NLRC elaborated:
Suffice it to state that albeit local respondent M. S. Catan Agency
was at the time of complainant's accident resulting in his permanent
partial disability was (sic) no longer the accredited agent of its foreign
principal, foreign respondent herein, yet its responsibility over the
proper implementation of complainant's employment/service contract
and the welfare of complainant himself in the foreign job site, still
existed, the contract of employment in question not having expired
yet. This must be so, because the obligations covenanted in the
recruitment agreement entered into by and between the local agent
and its foreign principal are not coterminus with the term of such
agreement so that if either or both of the parties decide to end the
agreement, the responsibilities of such parties towards the
contracted employees under the agreement do not at all end, but the
same extends up to and until the expiration of the employment
contracts of the employees recruited and employed pursuant to the
said recruitment agreement. Otherwise, this will render nugatory the
very purpose for which the law governing the employment of workers
for foreign jobs abroad was enacted. [NLRC Resolution, p. 4; Rollo,
p. 18]. (Emphasis supplied).
2. Petitioner contends that even if it is liable for disability
benefits, the NLRC gravely abused its discretion when it affirmed the
award of medical expenses when the said expenses were the
consequence of private respondent's negligence in returning to work
in Saudi Arabia when he knew that he was not yet medically fit to do
so.
Again, there is no merit in this contention.
No evidence was introduced to prove that private respondent was not
medically fit to work when he returned to Saudi Arabia. Exhibit "B", a
certificate issued by Dr. Shafquat Niazi, the camp doctor, on
November 1, 1983, merely stated that private respondent was
"unable to walk properly, moreover he is still complaining [of] pain
during walking and different lower limbs movement" [Annex "B",
Reply; Rollo, p. 51]. Nowhere does it say that he was not medically fit
to work.
Further, since petitioner even assisted private respondent in
returning to work in Saudi Arabia by purchasing his ticket for him
[Exhibit "E"; Annex "A", Reply to Respondents' Comments], it is as if
petitioner had certified his fitness to work. Thus, the NLRC found:
Furthermore, it has remained unrefuted by respondent that
complainant's subsequent departure or return to Saudi Arabia on
September 9, 1983 was with the full knowledge, consent and
assistance of the former. As shown in Exhibit "E" of the record, it was
respondent who facilitated the travel papers of complainant. [NLRC
Resolution, p. 5; Rollo, p. 19].
WHEREFORE, in view of the foregoing, the petition is DISMISSED
for lack of merit, with costs against petitioner.
PEOPLE VS CHOWDRY
Facts:
Bulu Chowdury was charged with the crime of illegal recruitment in
large scale by recruiting Estrella B. Calleja, Melvin C. Miranda and
Aser S. Sasis for employment in Korea. Evidence shows that
accused appellant interviewed private complainant in 1994 at
Craftrade’s office, and required them to submit requirements such as
passport, NBI clearance, ID pictures, medical certificate and birth
certificate. Chowdury also required them to pay placements fee for a
certain amount. At that time, he was an interviewer of Craftrade
which was operating under temporary authority given by POEA
pending the renewal of license. He was charged based on the fact
that he was not registered with the POEA as employee of Craftrade
and he is not in his personal capacity, licensed to recruit overseas
workers. The complainants also averred that during their applications
for employment for abroad, the license of Craftrade was already
expired. For his defense Chowdury testified that he worked as
interviewer at Craftrade from 1990 until 1994. His primary duty was
to interview job applicants for abroad. As a mere employee, he only
followed the instructions given by his superiors, Mr. Emmanuel
Geslani, the agency's President and General Manager, and Mr. Utkal
Chowdury, the agency's Managing Director. The trial Court found
Chowdury guilty beyond reasonable doubt of the crime of illegal
recruitment in large scale.
Issue:
Whether or not accused-appellant knowingly and intentionally
participated in the commission of the crime charged
Held:
No. The elements of illegal recruitment in large scale are: (1) The
accused undertook any recruitment activity defined under Article 13
(b) or any prohibited practice enumerated under Article 34 of the
Labor Code; (2) He did not have the license or authority to lawfully
engage in the recruitment and placement of workers; and (3) He
committed the same against three or more persons, individually or as
a group.
The last paragraph of Section 6 of Republic Act (RA) 804219 states
who shall be held liable for the offense, thus: “The persons criminally
liable for the above offenses are the principals, accomplices and
accessories. In case of juridical persons, the officers having control,
management or direction of their business shall be liable.”
An employee of a company or corporation engaged in illegal
recruitment may be held liable as principal, together with his
employer, if it is shown that he actively and consciously participated
in illegal recruitment. The culpability of the employee therefore
hinges on his knowledge of the offense and his active participation in
its commission. Where it is shown that the employee was merely
acting under the direction of his superiors and was unaware that his
acts constituted a crime, he may not be held criminally liable for an
act done for and in behalf of his employer
In this case, Chowdury merely performed his tasks under the
supervision of its president and managing director. The prosecution
failed to show that the accused-appellant is conscious and has an
active participation in the commission of the crime of illegal
recruitment. Moreover, accused-appellant was not aware of
Craftrade's failure to register his name with the POEA and the
prosecution failed to prove that he actively engaged in recruitment
despite this knowledge. The obligation to register its personnel with
the POEA belongs to the officers of the agency. A mere employee of
the agency cannot be expected to know the legal requirements for its
operation. The accused-appellant carried out his duties as
interviewer of Craftrade believing that the agency was duly licensed
by the POEA and he, in turn, was duly authorized by his agency to
deal with the applicants in its behalf. Accused-appellant in fact
confined his actions to his job description. He merely interviewed the
applicants and informed them of the requirements for deployment but
he never received money from them. Chowdury did not knowingly
and intentionally participated in the commission of illegal recruitment
being merely performing his task and unaware of illegality of
recruitment.
PEOPLE VS SEGUN
Facts:
Appellants Roger Segun and Josephine Clam without any license
and/or authority to engage in recruitment and placement of workers
from the Department of Labor and Employment, recruited the 13
persons allegedly to work in Manila namely: Mario Tambacan, Mary
Jane Cantil, Richard Aranas, VictoriaCollantes, Christine Collantes,
Rogelio Collantes, Luther Caban, Loreta Caban, Jonard Genemelo,
JhonelyGenemelo, Pedro Ozarraga, Pablo Ozarraga and Pacifico
Villaver. They all came from Linamon, Lanao del Norte. All of them
have different stories on how they were recruited by the appellants to
work in Manila. It was also allegedly claimed that the transportation
to Manila was free. It was established bythe prosecution that the said
appellants were neither licensed nor authorized by the DOLE to
recruit workers. Secondly, it was corroborated by the Mayor of
Linamon that appellants per records were not authorized to conduct
recruitment for local or overseas employment. On the other hand,
both Rogerand Josephine admitted that they did not have any license
to recruit. They only helped their neighbors find jobs because they
took pity on them when their neighbors begged them for jobs.
However, the Iligan City RTC convicted appellants for violating Article
38 of the Labor Code.
Issue:
Whether or not the appellants are guilty of Illegal Recruitment in
Large Scale?
Held:
No. The crime of illegal recruitment in large scale is committed when
three elements concur. First, the offender has no valid license or
authority required by law to lawfully engage in recruitment and
placement of workers. Second, he or she undertakes either any
activity within the meaning of “recruitment and placement” under
Article 13(b) or any prohibited acts enumerated under Article 34 of
the Labor Code. Third, offender commits said acts against three or
more persons, individually or as a group. In the case at hand, the first
element is present when a certification issued by DOLE states that
appellants were not authorized to conduct recruitment for local and
overseas employment. The appellants also conceded that they have
no license to recruit. As to the second element, the trial court was
able to deduced the testimonies of different witnesses and came up
with the conclusions that most of their testimonies were hearsay and
that during their direct or cross examinations, they used the term
“recruit” which according to the Supreme Court is a conclusion of
law. The prosecution failed to elicit from them the specific act
constituting the recruitment. The victims must testify as to the facts
that would prove recruitment. It does not suffice that the witness
simply state that the accused “recruited “the “victim”. In sum, the
prosecution failed to elicit from many witnesses the specific acts
constituting the recruitment of the alleged victims. However, the
prosecution was able to prove that appellants performed recruitment
activity only in cases of Victoria Collantes and Loreta Cavan. Since
the third element which is that the offender commits the acts against
three or more persons is absent, therefore,appellants is only guilty of
two counts of simple illegal recruitment.
HORTENCIA SALAZAR, vs.HON. TOMAS D. ACHACOSO, in his
capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ
Facts:
This concerns the validity of the power of the Secretary of Labor to
issue warrants of arrest and seizure under Article 38 of the Labor
Code, prohibiting illegal recruitment.
On October 21, 1987, Rosalie Tesoro filed with the POEA a
complaint against petitioner. Having ascertained that the petitioner
had no license to operate a recruitment agency, public respondent
Administrator Tomas D. Achacoso issued his challenged CLOSURE
AND SEIZURE ORDER.
The POEA brought a team to the premises of Salazar to implement
the order. There it was found that petitioner was operating Hannalie
Dance Studio. Before entering the place, the team served said
Closure and Seizure order on a certain Mrs. Flora Salazar who
voluntarily allowed them entry into the premises. Mrs. Flora Salazar
informed the team that Hannalie Dance Studio was accredited with
Moreman Development (Phil.). However, when required to show
credentials, she was unable to produce any. Inside the studio, the
team chanced upon twelve talent performers — practicing a dance
number and saw about twenty more waiting outside, The team
confiscated assorted costumes which were duly receipted for by Mrs.
Asuncion Maguelan and witnessed by Mrs. Flora Salazar.
A few days after, petitioner filed a letter with the POEA demanding
the return of the confiscated properties. They alleged lack of hearing
and due process, and that since the house the POEA raided was a
private residence, it was robbery.
On February 2, 1988, the petitioner filed this suit for prohibition.
Although the acts sought to be barred are already fait accompli,
thereby making prohibition too late, we consider the petition as one
for certiorari in view of the grave public interest involved.
Issue:
May the Philippine Overseas Employment Administration (or the
Secretary of Labor) validly issue warrants of search and seizure (or
arrest) under Article 38 of the Labor Code?
Held:
PETITION GRANTED. it is only a judge who may issue warrants of
search and arrest. Neither may it be done by a mere prosecuting
body.
We reiterate that the Secretary of Labor, not being a judge, may no
longer issue search or arrest warrants. Hence, the authorities must
go through the judicial process. To that extent, we declare Article 38,
paragraph (c), of the Labor Code, unconstitutional and of no force
and effect.
Moreover, the search and seizure order in question, assuming, ex
gratia argumenti, that it was validly issued, is clearly in the nature of
a general warrant. We have held that a warrant must identify clearly
the things to be seized, otherwise, it is null and void

For the guidance of the bench and the bar, we reaffirm the following
principles:
Under Article III, Section 2, of the l987 Constitution, it is only judges,
and no other, who may issue warrants of arrest and search:
The exception is in cases of deportation of illegal and undesirable
aliens, whom the President or the Commissioner of Immigration may
order arrested, following a final order of deportation, for the purpose
of deportation.
MEDLINE MANAGEMENT INC. VS ROSALINDA
PEOPLE VS BULI-E
Facts:
The complainants, upon learning that she was recruiting workers for
overseas employment, went to the house of appellant Alona Buli-e in
Baguio City. Buli-e then confirmed that she was, in fact recruiting
contract workers for Taiwan and that although she did not have a
license of her own to recruit, her boss, the spouses Jose and Josefa
Alolino, who was a licensed recruiter, was in the process of getting
her one which would soon be issued.
Upon this representation, the complainants gave placement fees and
other requirements to Buli-e. Buli-e even accompanied the
complainants for their medical check-up in Manila. During their
medical check-ups, complainants were able to talk to the spouses
Alolino who assured them that they were licensed to recruit overseas
contract workers and that they can deploy workers within two to three
months.
After months of waiting and despite compliance with all the
requirements, complainants were not deployed abroad as promised
prompting them to check with the POEA office in Baguio City if the
appellants were licensed to recruit overseas contract workers. Upon
learning that Buli-e and the spouses Alolino had no license to recruit
in any part of the Cordillera Administrative Region, the complainant
filed their complaint with the POEA-CAR and the Prosecutor’s Office.
The RTC found Buli-e and the spouses Alolino guilty of large scale
illegal recruitment and estafa. The Court of Appeals affirmed the
same.
Issues:
Whether there was conspiracy between Buli-e and spouses Alolino in
the commission of the crimes of large scale illegal recruitment and
estafa.
Held:
Yes. A conspiracy may be inferred even though no actual meeting
between or among them to coordinate ways and means is proved.
Settled is the rule that if it is proved that two or more persons, aimed,
by their acts, at the accomplishment of the same unlawful object,
each doing a part so that their acts, although apparently
independent, were in fact connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment, a
conspiracy may be inferred even though no actual meeting between
or among them to coordinate ways and means is proved.
People of the Philippines vs. Domingo Panis
GR No. L–58674–77, July 11, 1990
Facts:
On January 9, 1981, four information were filed in the in the Court of
First Instance (CFI) of Zambales and Olongapo City alleging that
herein private respondent Serapio Abug, "without first securing a
license from the Ministry of Labor as a holder of authority to operate
a fee-charging employment agency, did then and there wilfully,
unlawfully and criminally operate a private fee charging employment
agency by charging fees and expenses (from) and promising
employment in Saudi Arabia" to four separate individuals. Abug filed
a motion to quash contending that he cannot be charged for illegal
recruitment because according to him, Article 13(b) of the Labor
Code says there would be illegal recruitment only "whenever two or
more persons are in any manner promised or offered any
employment for a fee.”
Denied at first, the motion to quash was reconsidered and granted by
the Trial Court in its Orders dated June 24, 1981, and September 17,
1981. In the instant case, the view of the private respondents is that
to constitute recruitment and placement, all the acts mentioned in this
article should involve dealings with two or more persons as an
indispensable requirement. On the other hand, the petitioner argues
that the requirement of two or more persons is imposed only where
the recruitment and placement consists of an offer or promise of
employment to such persons and always in consideration of a fee.
Issue:
Whether or not Article 13(b) of the Labor Code provides for the
innocence or guilt of the private respondent of the crime of illegal
recruitment
Held:
The Supreme Court reversed the CFI’s Orders and reinstated all four
information filed against private respondent.
The Article 13(b) of the Labor Code was merely intended to create a
presumption, and not to impose a condition on the basic rule nor to
provide an exception thereto.
Where a fee is collected in consideration of a promise or offer of
employment to two or more prospective workers, the individual or
entity dealing with them shall be deemed to be engaged in the act of
recruitment and placement. The words "shall be deemed" create the
said presumption.

ROSA C. RODOLFO VS PEOPLE OF THE PHILIPPINES
498 SCRA 377 (2006)
Facts:
“Promises or offers for a fee employment” is sufficient to warrant
conviction for illegal recruitment.
Petitioner Rosa C. Rodolfo approached private complainants Necitas
Ferre and Narciso Corpus individually and invited them to apply for
overseas employment in Dubai. Rodolfo, being their neighbor, Ferre
and Corpus agreed and went to the former’s office. The office bore
the business name ―Bayside Manpower Export Specialist‖. In that
office, Ferre gave P1,000.00 as processing fee and another
P4,000.00. Likewise, Corpus gave Rodolfo P7,000.00. Rodolfo then
told Ferre and Corpus that they were scheduled to leave for Dubai.
However, private complainants and all the other applicants were not
able to depart on the scheduled date as their employer allegedly did
not arrive. Thus, their departure was rescheduled, but the result was
the same. Suspecting that they were being hoodwinked, Ferre and
Corpus demanded of Rodolfo to return their money. Except for the
refund of P1,000.00 to Ferre, Rodolfo was not able to return Ferre’s
and Corpus’ money. Ferre, Corpus and three others then filed a case
for illegal recruitment in large scale with the Regional Trial Court
(RTC) against Rodolfo.
The RTC rendered judgement against Rodolfo but in imposing the
penalty, the RTC took note of the fact that while the information
reflected the commission of illegal recruitment in large scale, only the
complaint of two (Ferre and Corpus) of the five complainants was
proven. Rodolfo appealed to the Court of Appeals (CA). The CA
dismissed the petition but modified the penalty imposed by the trial
court. The CA also dismissed Rodolfo’s Motion for Reconsideration.
fact issued by Hermogenes C. Mateo, Chief of the Licensing Division
of POEA.
The second element is doubtless also present. The act of referral,
which is included in recruitment, is ―the act of passing along or
forwarding of an applicant for employment after an initial interview of
a selected applicant for employment to a selected employer,
placement officer or bureau.‖ Rodolfo’s admission that she brought
private complainants to the agency whose owner she knows and her
acceptance of fees including those for processing betrays her guilt.
Rodolfo issued provisional receipts indicating that the amounts she
received from the private complainants were turned over to
Luzviminda Marcos and Florante Hinahon does not free her from
liability. For the act of recruitment may be ―for profit or not.‖ It is
sufficient that the accused ―promises or offers for a fee
employment‖ to warrant conviction for illegal recruitment.
Parenthetically, why Rodolfo accepted the payment of fees from the
private complainants when, in light of her claim that she merely
brought them to the agency, she could have advised them to directly
pay the same to the agency, she proferred no explanation.
On Rodolfo’s reliance on Señoron, true, the Court held that issuance
of receipts for placement fees does not make a case for illegal
recruitment. But it went on to state that it is ―rather the undertaking
of recruitment activities without the necessary license or authority‖
that makes a case for illegal recruitment.

Issue:

Whether or not Rodolfo is guilty of illegal recruitment in large scale

Held:

The elements of the offense of illegal recruitment, which must

concur, are: (1) that the offender has no valid license or authority
required by law to lawfully engage in recruitment and placement of
workers; and (2) that the offender undertakes any activity within the
meaning of recruitment and placement under Article 13(b), or any
prohibited practices enumerated under Article 34 of the Labor Code.
If another element is present that the accused commits the act
against three or more persons, individually or as a group, it becomes
an illegal recruitment in a large scale.

Article 13 (b) of the Labor Code defines ―recruitment and

placement‖ as ―[a]ny act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring workers, and includes
referrals, contract services, promising or advertising for employment,
locally or abroad, whether for profit or not.‖
That the first element is present in the case at bar, there is no doubt.
Jose Valeriano, Senior Overseas Employment Officer of the
Philippine Overseas Employment Administration, testified that the
records of the POEA do not show that Rodolfo is authorized to recruit
workers for overseas employment. A Certification to that effect was in
Held:
SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall
mean any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring, or procuring workers and includes referring, contract
services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by a non-licensee or non-holder of
authority contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or non-holder
who, in any manner, offers or promises for a fee employment abroad
to two or more persons shall be deemed so engaged. It shall likewise
include the following acts, whether committed by any person,
whether a non-licensee, non-holder, licensee or holder of authority:
(m) Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the worker's fault. Illegal recruitment when committed
by a syndicate or in large scale shall be considered an offense
involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate if carried out
by a group of three (3) or more persons conspiring or confederating
with one another. It is deemed committed in large scale if committed
against three (3) or more persons individually or as a group.
It is well-settled that to prove illegal recruitment, it must be shown
that appellant gave complainants the distinct impression that she had
the power or ability to send complainants abroad for work such that
the latter were convinced to part with their money in order to be
employed.[44] All eight private complainants herein consistently
declared that Ochoa offered and promised them employment
overseas. Ochoa required private complainants to submit their bio-
data, birth certificates, and passports, which private complainants
did. Private complainants also gave various amounts to Ochoa as
payment for placement and medical fees as evidenced by the
receipts Ochoa issued to Gubat,[45] Cesar,[46] and Agustin.[47]
Despite private complainants compliance with all the requirements
Ochoa specified, they were not able to leave for work abroad. Private
complainants pleaded that Ochoa return their hard-earned money,
but Ochoa failed to do so.
Even if we disregard the POEA certification, for regardless of
whether or not Ochoa was a licensee or holder of authority, she
could still have committed illegal recruitment. Section 6 of Republic
Act No. 8042 clearly provides that any person, whether a non-
licensee, non-holder, licensee or holder of authority may be held
liable for illegal recruitment for certain acts as enumerated in
paragraphs (a) to (m) thereof. Among such acts, under Section 6(m)
of Republic Act No. 8042, is the [f]ailure to reimburse expenses
incurred by the worker in connection with his documentation and
processing for purposes of deployment, in cases where the
deployment does not actually take place without the workers fault.
Ochoa committed illegal recruitment as described in the said
provision by receiving placement and medical fees from private
complainants, evidenced by the receipts issued by her, and failing to
reimburse the private complainants the amounts they had paid when
they were not able to leave for Taiwan and Saudi Arabia, through no
fault of their own.
PERT/CPM v. Vinuya
G.R. No. 197528, Sept. 5, 2012
Facts:
Respondents were contracted by the agency for deployment to work
as aluminum fabricator/installer in Modern Metal in Dubai, UAE. The
contract was for 2 years, approved by POEA, providing 9 working
hours a day, a salary of 1,350 AED with overtime pay, food
allowance, free and suitable housing, free transportation, free
laundry, free medical and dental services. However, in Dubai,
Modern Metals gave them appointment letters with terms different
from those they signed in the Philippines – increasing their
employment terms, reducing salaries, allowances, and benefits. The
working conditions were also not as promised. They complained to
their agency but to no avail. Due to unbearable living and working
condition, they resigned from their job and indicated personal/family
problems as their reasons. (except for Era who mentioned real
reason). On March 15, 2008, respondents file a complaint for illegal
dismissal against PERT CPM. They agency alleged that they were
not illegally dismissed because they resigned voluntarily. Labor
Arbiter dismissed the complaint finding that they voluntarily resigned.
Respondents appealed to NLRC which reversed the decision of
Labor Arbiter. NLRC pointed out that signing of different contract in
Dubai is illegal. NLRC ordered the payment of agency to pay the
salary, placement fee, and exemplary damages to respondents.
Petitioner filed a motion for reconsideration which was denied by
NLRC, but modified their judgment adjusting the awards, particularly
their salaries, in light of court’s ruling in Serrano striking down the
clause in Sec 10, par 5, RA 8042 which limits the entitlement of
illegally dismissed OFW. Petitioner moved for reconsideration and
questioned the applicability of Serrano ruling. This was denied. CA
upheld NLRC’s decision.
Issue:
Whether or not the NLRC’s decision in awarding the respondents
salaries for the unexpired portion of their employment contracts,
pursuant to the Serrano ruling is correct
Held:
With their original contracts substituted and their oppressive working
and living conditions unmitigated or unresolved, the respondents
decision to resign is not surprising. They were compelled by the
dismal state of their employment to give up their jobs; effectively,
they were constructively dismissed. A constructive dismissal or
discharge is "a quitting because continued employment is rendered
impossible, unreasonable or unlikely, as, an offer involving a
demotion in rank and a diminution in pay."37ςrνllςrνll
Without doubt, the respondents continued employment with Modern
Metal had become unreasonable. A reasonable mind would not
approve of a substituted contract that pays a diminished salary from
1350 AED a month in the original contract to 1,000 AED to 1,200
AED in the appointment letters, a difference of 150 AED to 250 AED
(not just 50 AED as the agency claimed) or an extended employment
(from 2 to 3 years) at such inferior terms, or a "free and suitable"
housing which is hours away from the job site, cramped and
crowded, without potable water and exposed to air pollution.
We thus cannot accept the agency s insistence that the respondents
voluntarily resigned since they personally prepared their resignation
letters38ςrνll in their own handwriting, citing family problems as their
common ground for resigning. As the CA did, we find the resignation
letters "dubious,"39ςrνll not only for having been lopsidedly worded to
ensure that the employer is rendered free from any liability, but also
for the odd coincidence that all the respondents had, at the same
time, been confronted with urgent family problems so that they had to
give up their employment and go home. The truth, as the
respondents maintain, is that they cited family problems as reason
out of fear that Modern Metal would not give them their salaries and
their release papers. Only Era was bold enough to say the real
reason for his resignation to protest company policy.
The application of the Serrano ruling in the present case is of no
moment. Its argument that the ruling cannot be given retroactive
effect, because it is curative and remedial, is untenable. It points out,
in this respect, that the respondents filed the complaint in 2007, while
the Serrano ruling was handed down in March 2009. The issue, as
the respondents correctly argue, has been resolved in Yap v.
Thenamaris Ship s Management,50ςrνll where the Court sustained
the retroactive application of the Serrano ruling which declared
unconstitutional the subject clause in Section 10, paragraph 5 of R.A.
8042, limiting to three months the payment of salaries to illegally
dismissed Overseas Filipino Workers.
Undaunted, the agency posits that in any event, the Serrano ruling
has been nullified by R.A. No. 10022, entitled "An Act Amending
Republic Act No. 8042, Otherwise Known as the Migrant Workers
and Overseas Filipinos Act of 1995, As Amended, Further Improving
the Standard of Protection and Promotion of the Welfare of Migrant
Workers, Their Families and Overseas Filipinos in Distress, and For
Other Purposes."51ςrνll It argues that R.A. 10022, which lapsed into
law (without the Signature of the President) on March 8, 2010,
restored the subject clause in the 5th paragraph, Section 10 of R.A.
8042. The amendment, contained in Section 7 of R.A. 10022, reads
as follows:
In case of termination of overseas employment without just, valid or
authorized cause as defined by law or contract, or any unauthorized
deductions from the migrant worker s salary, the worker shall be
entitled to the full reimbursement "of" his placement fee and the
deductions made with interest at twelve percent (12%) per annum,
plus his salaries for the unexpired portion of his employment contract
or for three (3) months for every year of the unexpired term,
whichever is less.52ςrνll (emphasis ours)
This argument fails to persuade us. Laws shall have no retroactive
effect, unless the contrary is provided.53ςrνll By its very nature, the
amendment introduced by R.A. 10022 restoring a provision of R.A.
8042 declared unconstitutional cannot be given retroactive effect, not
only because there is no express declaration of retroactivity in the
law, but because retroactive application will result in an impairment of
a right that had accrued to the respondents by virtue of the Serrano
ruling - entitlement to their salaries for the unexpired portion of their
employment contracts.
All statutes are to be construed as having only a prospective
application, unless the purpose and intention of the legislature to give
them a retrospective effect are expressly declared or are necessarily
implied from the language used.54ςrνll We thus see no reason to
nullity the application of the Serrano ruling in the present case.
Whether or not R.A. 1 0022 is constitutional is not for us to rule upon
in the present case as this is an issue that is not squarely before us.
In other words, this is an issue that awaits its proper day in court; in
the meanwhile, we make no pronouncement on it.
PEOPLE VS OCDEN
G.R. No. 173198, June 1, 2011
Facts:
The RTC rendered a Decision finding Ocden guilty beyond
reasonable doubt of the crimes of illegal recruitment in large scale
and three counts of estafa.
(This is based from complaints of several persons accusing her of
promising to the applicants employment to a stuffed toy factory in
Italy, wherein she asks for 70k from each as placement fee. After the
applicants pay, they will be sent to Zamboanga on the assurance that
they will be first sent to Malaysia for easier processing of their visas,
and then to Italy, which never materialized.
Ocden asserts that she was also just an applicant for overseas
employment; and that she was receiving her co-applicants’ job
applications and other requirements, and accepting her co-
applicants’ payments of placement fees, because she was
designated as the applicants’ leader by Ramos, the real recruiter. )
Aggrieved by the above decision, Ocden filed with the RTC a Notice
of Appeal. Ocden’s appeal was sent to the Court of Appeals. The
appellate court promulgated its Decision, dismissing the appeal and
affirming Ocden’s conviction.
Hence, this appeal
Issue:
WON THE TRIAL COURT ERRED IN CONVICTING ACCUSED-
APPELLANT OF ILLEGAL RECRUITMENT COMMITTED IN LARGE
SCALE ALTHOUGH THE CRIME WAS NOT PROVEN BEYOND
REASONABLE DOUBT.
Held:
NO. After a thorough review of the records of the case, we find
nothing on record that would justify a reversal of Ocden’s conviction.
Illegal recruitment in large scale
Ocden contends that the prosecution failed to prove beyond
reasonable doubt that she is guilty of the crime of illegal recruitment
in large scale. Other than the bare allegations of the prosecution
witnesses, no evidence was adduced to prove that she was a non-
licensee or non-holder of authority to lawfully engage in the
recruitment and placement of workers. No certification attesting to
this fact was formally offered in evidence by the prosecution.
Ocden’s aforementioned contentions are without merit.
Article 13, paragraph (b) of the Labor Code defines and enumerates
the acts which constitute recruitment and placement:
(b) “Recruitment and placement” refers to any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring, or procuring
workers, and includes referrals, contract services, promising for
advertising for employment locally or abroad, whether for profit or
not: Provided, That any person or entity which, in any manner, offers
or promises for a fee employment to two or more persons shall be
deemed engaged in recruitment and placement.
The amendments to the Labor Code introduced by RA 8042,
otherwise known as the Migrant Workers and Overseas Filipinos Act
of 1995, broadened the concept of illegal recruitment and provided
stiffer penalties, especially for those that constitute economic
sabotage, i.e., illegal recruitment in large scale and illegal recruitment
committed by a syndicate. Pertinent provisions of Republic Act No.
8042 are reproduced below:
SEC. 6. Definition. – For purposes of this Act, illegal recruitment shall
mean any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring, or procuring workers and includes referring, contract
services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by a non-licensee or non-holder of
authority contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or non-holder
who, in any manner, offers or promises for a fee employment abroad
to two or more persons shall be deemed so engaged. It shall likewise
include the following acts, whether committed by any person,
whether a non-licensee, non-holder, licensee or holder of authority:
xx
(m) Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the worker’s fault. Illegal recruitment when committed
by a syndicate or in large scale shall be considered an offense
involving economic sabotage.
xxxx
YES
It is well-settled that to prove illegal recruitment, it must be shown
that appellant gave complainants the distinct impression that he had
the power or ability to send complainants abroad for work such that
the latter were convinced to part with their money in order to be
employed. As testified to by Mana-a, Ferrer, and Golidan, Ocden
gave such an impression through the following acts:
(1) Ocden informed Mana-a, Ferrer, and Golidan about the job
opportunity in Italy and the list of necessary requirements for
application;
(2) Ocden required Mana-a, Ferrer, and Golidan’s sons, Jeffries and
Howard, to attend the seminar conducted by Ramos at Ocden’s
house in Baguio City;
(3) Ocden received the job applications, pictures, bio-data,
passports, and the certificates of previous employment (which was
also issued by Ocden upon payment of P500.00), of Mana-a, Ferrer,
and Golidan’s sons, Jeffries and Howard;
(4) Ocden personally accompanied Mana-a, Ferrer, and Golidan’s
sons, Jeffries and Howard, for their medical examinations in Manila;
(5) Ocden received money paid as placement fees by Mana-a,
Ferrer, and Golidan’s sons, Jeffries and Howard, and even issued
receipts for the same; and (6) Ocden assured Mana-a, Ferrer, and
Golidan’s sons, Jeffries and Howard, that they would be deployed to
Italy.
It is not necessary for the prosecution to present a certification that
Ocden is a non-licensee or non-holder of authority to lawfully engage
in the recruitment and placement of workers. Section 6 of Republic
Act No. 8042 enumerates particular acts which would constitute
illegal recruitment “whether committed by any person, whether a non-
licensee, non-holder, licensee or holder of authority.” Among such
acts, under Section 6(m) of Republic Act No. 8042, is the “[f]ailure to
reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases
where the deployment does not actually take place without the
worker’s fault.”
Since illegal recruitment under Section 6(m) can be committed by
any person, even by a licensed recruiter, a certification on whether
Ocden had a license to recruit or not, is inconsequential. Ocden
committed illegal recruitment as described in said provision by
receiving placement fees from Mana-a, Ferrer, and Golidan’s two
sons, Jeffries and Howard, evidenced by receipts Ocden herself
issued; and failing to reimburse/refund to Mana-a, Ferrer, and
Golidan’s two sons the amounts they had paid when they were not
able to leave for Italy, through no fault of their own.
RODOLFO GALLO y GADOT, Accused-Appellant,
FIDES PACARDO y JUNGCO and PILAR MANTA y DUNGO
Facts:
Originally, accused-appellant Gallo and accused Fides Pacardo
(“Pacardo”) and Pilar Manta (“Manta”), together with Mardeolyn
Martir (“Mardeolyn”) and nine (9) others [including herein accused-
appellant, were charged with syndicated illegal recruitment and
eighteen (18) counts of estafa committed against eighteen
complainants.
NOTE: Basta ang nanyari, the trial proceeded while some of the
accused were at large. Some cases were provisionally dismissed
due to non-appearance. Pacardo and Manta were acquitted. While
herein accused-appellant (GALLO) was convicted for syndicated
illegal recruitment. Hence, this appeal by Gallo alone.
In Criminal Case No. 02-206293, the information charges the
accused-appellant, together with the others, as follows:
The undersigned accuses xxx of a violation of Section 6(a), (l) and
(m) of Republic Act 8042, otherwise known as the Migrant Workers
and Overseas Filipino Workers Act of 1995, committed by a
syndicate and in large scale,
When arraigned GALLO pleaded not guilty; pre-trial was terminated
and trial ensued, thereafter.
VERSION OF THE PROSECUTION: Dela Caza was introduced by
Eleanor Panuncio to accused-appellant Gallo, Pacardo, Manta,
Mardeolyn, Lulu Mendanes, Yeo Sin Ung and another Korean
national at the office of MPM International Recruitment and
Promotion Agency (“MPM Agency”) located in Malate, Manila; Other
accused were introduced as board members, officers and
employees of MPM.

Accused-appellant Gallo then introduced himself as a relative of
Mardeolyn and informed Dela Caza that the agency was able to send
many workers abroad. Together with Pacardo and Manta, he also
told Dela Caza about the placement fee of One Hundred Fifty
Thousand Pesos (PhP 150,000) with a down payment of Forty-Five
Thousand Pesos (PhP 45,000) and the balance to be paid through
salary deduction; Dela Caza, together with the other applicants, were
briefed.
With accused-appellant’s assurance that many workers have been
sent abroad, as well as the presence of the two (2) Korean nationals
and upon being shown the visas procured for the deployed workers,
Dela Caza was convinced to part with his money. Thus, on May 29,
2001, he paid Forty-Five Thousand Pesos (PhP 45,000) to MPM
Agency through accused-appellant Gallo.
Two (2) weeks after paying MPM Agency, Dela Caza went back to
the agency’s office in Malate, Manila only to discover that the office
had moved to a new location at Batangas Street, Brgy. San Isidro,
Makati. He proceeded to the new address and found out that the
agency was renamed to New Filipino Manpower Development &
Services, Inc. (“New Filipino”).
Dela Caza decided to withdraw his application and recover the
amount he paid; Gallo even denied any knowledge about the money.
After two (2) more months of waiting in vain to be deployed, Dela
Caza and the other applicants decided to take action.
VERSION OF THE DEFENSE: For his defense, accused-appellant
denied having any part in the recruitment of Dela Caza. In fact, he
testified that he also applied with MPM Agency for deployment to
Korea as a factory worker; in order to facilitate the processing of his
papers, he agreed to perform some tasks for the agency, such as
taking photographs of the visa and passport of applicants, running
errands and performing such other tasks assigned to him, without
salary except for some allowance. He said that he only saw Dela
Caza one or twice at the agency’s office when he applied for work
abroad. Lastly, that he was also promised deployment abroad but it
never materialized.
DEVELOPMENT OF THE CASE: RTC rendered its Decision
convicting the accused of syndicated illegal recruitment and estafa;
CA affirmed; accused-appellant filed a timely appeal before this
Court.
Issue:
WON accused-appellant is guilty of illegal recruitment committed by
a syndicate and estafa.
Held:
YES
The appeal has no merit.
Accused-appellant avers that he cannot be held criminally liable for
illegal recruitment because he was neither an officer nor an
employee of the recruitment agency. He alleges that the trial court
erred in adopting the asseveration of the private complainant that he
was indeed an employee because such was not duly supported by
competent evidence.
We disagree.
To commit syndicated illegal recruitment, three elements must be
established: (1) the offender undertakes either any activity within the
meaning of “recruitment and placement” defined under Article 13(b),
or any of the prohibited practices enumerated under Art. 34 of the
Labor Code; (2) he has no valid license or authority required by law
to enable one to lawfully engage in recruitment and placement of
workers;8 and (3) the illegal recruitment is committed by a group of
three (3) or more persons conspiring or confederating with one
another.9 When illegal recruitment is committed by a syndicate or in
large scale, i.e., if it is committed against three (3) or more persons
individually or as a group, it is considered an offense involving
economic sabotage.
After a thorough review of the records, we believe that the
prosecution was able to establish the elements of the offense
sufficiently. The evidence readily reveals that MPM Agency was
never licensed by the POEA to recruit workers for overseas
employment.
Even with a license, however, illegal recruitment could still be
committed under Section 6 of Republic Act No. 8042 (“R.A. 8042”),
otherwise known as the Migrants and Overseas Filipinos Act of 1995
(See Notes).
In the instant case, accused-appellant committed the acts
enumerated in Sec. 6 of R.A. 8042. Testimonial evidence presented
by the prosecution clearly shows that, in consideration of a promise
of foreign employment, accused-appellant received the amount of
Php 45,000.00 from Dela Caza. When accused-appellant made
misrepresentations concerning the agency’s purported power and
authority to recruit for overseas employment, and in the process,
collected money in the guise of placement fees, the former clearly
committed acts constitutive of illegal recruitment.
Essentially, Dela Caza appeared very firm and consistent in
positively identifying accused-appellant as one of those who induced
him and the other applicants to part with their money. His testimony
showed that accused-appellant made false misrepresentations and
promises in assuring them that after they paid the placement fee,
jobs in Korea as factory workers were waiting for them and that they
would be deployed soon.
On the contrary, his active participation in the illegal recruitment is
unmistakable. The fact that he was the one who issued and signed
the official receipt belies his profession of innocence.
This Court likewise finds the existence of a conspiracy between the
accused-appellant and the other persons in the agency who are
currently at large, resulting in the commission of the crime of
syndicated illegal recruitment. Verily, the active involvement of each
in the recruitment scam was directed at one single purpose – to
divest complainants with their money on the pretext of guaranteed
employment abroad.
Estafa
The prosecution likewise established that accused-appellant is guilty
of the crime of estafa as defined under Article 315 paragraph 2(a) of
the Revised Penal Code (See notes)
The elements of estafa in general are: (1) that the accused
defrauded another (a) by abuse of confidence, or (b) by means of
deceit; and (2) that damage or prejudice capable of pecuniary
estimation is caused to the offended party or third person.
All these elements are present in the instant case: the accused-
appellant, together with the other accused at large, deceived the
complainants into believing that the agency had the power and
capability to send them abroad for employment; that there were
available jobs for them in Korea as factory workers; that by reason or
on the strength of such assurance, the complainants parted with their
money in payment of the placement fees; that after receiving the
money, accused-appellant and his co-accused went into hiding by
changing their office locations without informing complainants; and
that complainants were never deployed abroad. As all these
representations of the accused-appellant proved false, paragraph
2(a), Article 315 of the Revised Penal Code is thus
applicable.1avvphi1
Defense of Denial Cannot Prevail over Positive Identification
PEOPLE OF THE PHILIPPINES vs. THELMA REYES and
NICK REYES, accused, THELMA REYES
G.R. No. 105204 March 9, 1995
MENDOZA, J.:
This is an appeal from the decision of the Regional Trial Court
of Laguna, Branch 35, the dispositive portion of which reads as
follows:
WHEREFORE, the prosecution having established the guilt of
the accused Thelma Reyes beyond reasonable doubt of Illegal
Recruitment defined and penalized under Article 38, P.D. No.
442 as amended, the Court hereby sentences said accused to
suffer a penalty of Reclusion Perpetua and to pay a fine in the
amount of P100,000.00 and to indemnify Rosalino Bitang and
Fabian Baradas, Mr. de Castro, Lorenzo Blanza and Ramon
Mendoza the sum of P45,000.00 and to pay the costs.
Appellant Thelma Reyes was charged together with her
husband Nick Reyes, but the latter was at large and so has
remained up to now. Consequently, the trial proceeded only
with respect to Thelma Reyes in view of her plea of not guilty.
The prosecution's first witness, Rosalino Bitang, testified that
sometime in 1985, he and five others (Lorenzo Blanza,
Fabian Baradas, Edgardo Garcia, Ramon Mendoza and
Dionisio de Castro) went to the house of the appellant in
Los Baños, Laguna, to apply for employment abroad; that
he gave P5,000 to Nick Reyes as downpayment for the
recruitment fees; that Nick Reyes handed the money to his
wife Thelma Reyes, and afterward issued a receipt (Exh.
A), which reads:
RECEIPT
RECEIVED from MR. RIZALINO BITANG the amount of FIVE
THOUSAND (P5,000.00) PESOS, Philippine Currency.
Manila, September 19, 1985.
(SGD.) NICK N. REYES, SR.
Bitang testified that on January 14, 1986, he and his
companions paid P34,000.00 more to the spouses through
Dionisio de Castro. Of this amount, P8,500.00 was for his
(witness Bitang's) placement fee, while the balance was for
payment of his companions' fees. As before Nick Reyes
received the amount and gave it to his wife, Thelma Reyes,
after which he issued a receipt (Exh. B) which reads:
RECEIPT
RECEIVED from MR. DIONISIO DE CASTRO the amount of
THIRTY FOUR THOUSAND (P34,000.00) Pesos, Philippine
Currency for the following: Edgardo Garcia Ramon Mendoza
Lorenzo Blanza, Fabian Barradas, and Rosalino Bitang.
Manila, January 14, 1986.
(SGD) NICHOL REYES SR.
According to complainant, Nick Reyes promised to notify
them as soon as they were accepted for employment so
that they could leave for abroad, but this promise was not
fulfilled. He said that he checked with the Philippine
Overseas Employment Administration (POEA) and found
out that the spouses were not licensed recruiters. A
certification to this effect was issued to him by the POEA.
(Exh. C)
The other complainant Fabian Baradas also testified. He
stated that he was introduced to Thelma Reyes sometime
in September, 1985 at Lemery, Batangas, while the latter
was recruiting workers for deployment in Saudi Arabia.
On several occasions between September and December,
1985, he and several others went to appellant's house at
Junction, Los Baños Laguna for overseas employment
and were required to submit travel documents, such as
passports, birth certificates and NBI clearances and to pay
various amounts of money.
On January 9, 1986, he gave P6,000.00 to Nick and Thelma
Reyes, through his godfather Dionisio de Castro, for which
Nick Reyes issued to him a receipt (Exh. E), reading:
RECEIPT
Received from Mr. Dionisio de Castro the amount of Six
Thousand (P6,000.00) Pesos, Philippine Currency.
Manila, January 9, 1986.
(SGD.) NICK N. REYES
On January 14, 1986, he paid the additional amount of
P12,000.00 to Reyes through Dionisio de Castro as
evidenced by Exh. B. The money was supposed to cover
the cost of the processing papers. However, as no job was
forthcoming, he went to the POEA to inquire, and, like
Rosalino Bitang, he learned that the spouses were not
licensed recruiters.
The complainants both testified that as soon as they
obtained the POEA certification that appellant and her
husband were not licensed to recruit, they demanded from
the spouses the return of their money and when the latter
did not give back their money, they filed the complaint in
this case.
Only the appellant Thelma Reyes testified in her behalf. She
claimed that she met the witnesses Bitang and Baradas only
when they were looking for her husband at their house in Los
Baños, Laguna, between March and May of 1986. She denied
having met them before.
Thelma Reyes admitted that the receipts (Exhs. A, B and
E) were all written and signed by her husband, but she
denied she had anything to do with her husband's
activities. She said they had been estranged since March
1986 precisely because she did not approve of her
husband's illegal activities. She claimed that she had told
her husband that, even though they were poor, they could
live on their earning and the monthly support of
P10,000.00 which they were receiving from her mother-in-
law who lived in the United States.
According to appellant, she and her husband saw each
other only occasionally, whenever they visited their
children in Los Baños where they were studying because
she lived in Singalong, Manila. She presumed that her
husband had told complainants to go to the house in Los
Baños which they were merely renting for their children
and that she was included in the complaint only because
her husband could not be located.
On cross-examination she admitted that there were fourteen
(14) other cases of Illegal Recruitment filed and/or pending
against her and her husband in different courts of Manila and
claimed that some of the cases had been dismissed or settled
after she had refunded the money of the complainants.
Testifying on rebuttal for the prosecution, Rosalino Bitang
stated that it was Thelma Reyes herself who gave the job
applicants the address and sketch of their house in Los
Baños, Laguna, and that she represented to him that she
was negotiating for job placements abroad. Bitang
reiterated that money paid to Nick Reyes was given to
Thelma Reyes who counted it before Nick Reyes issued
receipts.
On the basis of the parties' evidence, the trial court found
Thelma Reyes guilty of illegal recruitment and sentenced
her as stated in the beginning. Hence this appeal.
Appellant claims that the trial court erred —
1. IN FINDING THAT THE PROSECUTION HAS
MARSHALLED THE QUANTUM OF EVIDENCE SUFFICIENT
TO CONVICT THE ACCUSED OF THE CRIME OF ILLEGAL
RECRUITMENT UNDER ARTICLE 38, P.D. NO. 442.
2. IN NOT CONSIDERING THE FACT THAT THERE
ARE ONLY TWO COMPLAINANTS IN THE INFORMATION
FILED ON DECEMBER 11, 1986 AGAINST THE ACCUSED
HENCE THEY CANNOT BE PROSECUTED UNDER
ARTICLE 38, P.D. NO. 442.
3. IN GIVING CREDENCE TO THE VERBAL
TESTIMONIES OF PRIVATE COMPLAINANTS RATHER
THAN THE DOCUMENTARY EVIDENCE.
We shall now deal with these contentions of appellant.
First. Appellant contends that the testimonies of Bitang and
Baradas are insufficient to sustain conviction. She contends
that Dionisio de Castro, who allegedly advanced P34,000.00
for the complainants and their companions, should have been
presented to corroborate the claim of the claimants.
The contention is without merit. To be sure, an accused can be
convicted on the strength of the testimony of a single witness,
if such testimony is credible and positive and produces a
conviction beyond reasonable doubt.1 That the witness is also
the complainant in a case makes little difference as long as the
court is convinced beyond doubt that the witness is telling the
truth. For instance, in Hernandez v. Court of Appeals2 this
Court held:
Petitioner claims that the decision of the trial court is not
supported by the evidence, which is contrary to the findings of
the Court of Appeals that said decision is "in accordance with
law and the evidence" (Rollo,
p. 12). He points out that the appellate court should not have
believed the trial court's conclusion that "the sole testimony of
the offended party would have sufficed to sustain her
assertions" (Rollo, p. 47). He claims that self-serving
declarations of a party favorable to himself are not admissible
and that none of the alleged witnesses to the transactions
were presented.
The common objection known as "self-serving" is not correct
because almost all testimonies are self-serving. The proper
basis for objection is "hearsay" (Wenke, Making and Meeting
Objections, 69).
Petitioner fails to take into account the distinction between self-
serving statements and testimonies made in court. Self-serving
statements are those made by a party out of court advocating
his own interest; they do not include a party's testimony as a
witness in court (National Development Co. v. Workmen's
Compensation Commission, 19 SCRA 861 [1967]).
Self-serving statements are inadmissible because the adverse
party is not given the opportunity for cross-examination, and
their admission would encourage fabrication of testimony. This
cannot be said of a party's testimony in court made under oath,
with full opportunity on the part of the opposing party for cross-
examination.
It is not true that none of the alleged witnesses to the
transactions was presented in court (Rollo, p. 13). Yolanda
Dela Rosa, an eye-witness to some of the transactions,
testified for the prosecution. Assuming that Dela Rosa was not
presented as a witness, the testimony of de Leon sufficed to
sustain the conviction of petitioner. The conviction of an
accused may be on the basis of the testimony of a single
witness (People v. Rumeral, 200 SCRA 194 [1991]). In
determining the value and credibility of evidence, witnesses
are to be weighed, not counted (People v. Villalobos, 209
SCRA 304 [1992]).
In the case at bar, the trial court gave weight to the testimonies
of complainants because,
Except for the denial of accused Thelma Reyes that she has
nothing to do with the recruitment of the complaining witnesses
as well as the collection of the amount from them, said
accused failed to sufficiently overthrow the convincing
testimony of the complaining witnesses that accused Thelma
Reyes was present and even counted the money evidenced by
Exhibit[s] "A" and "B" after her husband hands it to her and
that her husband Nick Reyes who issued the receipts to the
complainants.
Moreover, when the issue is the credibility of witnesses,
appellate courts will in general not disturb the findings of the
trial court unless certain facts or circumstances of weight have
been overlooked, misunderstood or misapplied which, if
considered, might affect the result of the case. This is because
the trial court heard the testimony of the witnesses and
observed their deportment and manner of testifying during the
trial.3
With respect to the fact that Dionisio de Castro was not
presented to testify, it is sufficient to say that there was no
necessity for this because there is no question that the amount
of P34,000.00 which he had advanced for the complainants
and others was received by Nick Reyes.
Second. Appellant contends that the receipts constitute the
best evidence to show that only Nick Reyes received the
amounts stated therein because only his signature appears on
the receipts. That the receipts were signed by Nick Reyes
alone only proves that it was to him that the amounts were
paid. What, on the other hand, complainants are saying is that
appellant is guilty because she and her husband, conspiring
together, acted and made them believe that they were licensed
recruiters. If so, the acts of the husband were likewise those of
her. Indeed, the evidence shows that after receiving the
amounts from complainants, Nick Reyes handed the money
paid to the appellant and that Nick Reyes issued the receipts in
question only after appellant Thelma Reyes had counted it.
Appellant claims that she and her husband separated in 1985
precisely because she did not want to be involved in his illegal
activities. This seems to be us to be a convenient way to
dissociate herself, but her mere claim is not enough to
overcome the evidence of the prosecution. If there was anyone
whose testimony needed corroboration it was appellant.
Taking another tack, appellant points out that complainants
cannot explain why the purpose for which payment was made
is not stated in the receipts nor why the receipts purport to
have been issued in "Manila" and not in Los Baños where they
said they had made all the payments. She argues that if the
illegal recruitment was made in Manila, then the Regional Trial
Court of Laguna had no jurisdiction to try the case.
The circumstances pointed out by appellant only underscores
the deviousness of appellant and her husband. Complainants
have an elementary education only. It is not for them — but for
appellant and her husband — to explain these circumstances
because it was the latter who made-the receipts. It is not far
fetched that they made the receipts this way precisely to create
doubt as to their real import. It is enough that complainants
positively identified the appellant and her husband as having
illegally recruited them and collected money from them. Their
testimonies have not been successfully rebutted by the lame
denial of appellant.
Third. Appellant contends that in any event the testimonies of
the two complainants could not be the basis for a finding of
illegal recruitment on a large scale and for imposing the
penalty of life imprisonment on her. The Labor Code
prescribes the penalty of life imprisonment for illegal
recruitment when committed on a "large scale." Art. 38 (b) of
the Code provides:
(b) Illegal recruitment when committed by a syndicate or
in large scale shall be considered an offense involving
economic sabotage and shall be penalized in accordance with
Article 39 hereof.
And Art. 39 (a) provides:
Art. 39. Penalties. — (a) The penalty of life imprisonment
and a fine of One Hundred Thousand Pesos (P100,000)
shall be imposed if illegal recruitment constitutes
economic sabotage as defined herein.
We agree with this contention.
In this case the information against appellant mentioned
only the two complainants Fabian Baradas and Rosalino
Bitang as having been illegally recruited by appellant and
her husband. The trial Court, however, held appellant
guilty of illegal recruitment on a large scale because aside
from Baradas and Bitang, appellant and her husband
allegedly recruited others, namely, Lorenzo Blanza,
Edgardo Garcia, Ramon Mendoza, and Dionisio de Castro.
This is error. To be sure, Blanza and Garcia, according to
complainant Baradas were able to obtain overseas
employment. On the other hand, with respect to De Castro
there is no evidence that he, too, had been illegally recruited
by the spouses. What appears in the record is that he
advanced the amount of P34,000.00 in behalf of the
complainants and the three others. Only two, therefore, had
been illegally recruited.
There are, it is said, 14 other cases filed pending in the courts
against the accused for illegal recruitment. These cases
cannot be taken into account for the purpose of Art. 38(b).
When the Labor Code speaks of illegal recruitment "committed
against three (3) or more persons individually or as a group," it
must be understood as referring to the number of complainants
in each case who are complainants therein, otherwise,
prosecutions for single crimes of illegal recruitment can be
cummulated to make out a case of large scale illegal
recruitment. In other words, a conviction for large scale illegal
recruitment must be based on a finding in each case of illegal
recruitment of three or more persons whether individually or as
a group.
Moreover, even it Blanza and Garcia had been illegally
recruited so as to make the number of persons illegally
recruited four and make the crime that of illegal recruitment on
a large scale, since this was not alleged in the information and
this is the more serious offense which includes that which was
charged, the appellant can only be found guilty of the less
serious offense charged, pursuant to Rule 120, §4.
Accordingly, appellant must be punished under Art. 39(c) of
the Labor Code which provides:
(c) Any person who is neither a licensee nor a holder of
authority under this Title found violating any provision thereof
or its implementing rules and regulations shall upon conviction
thereof, suffer the penalty of imprisonment of not less than four
years nor more than eight years or a fine of not less than
P20,000 nor more than P100,000 or both such imprisonment
and fine, at the discretion of the court.
WHEREFORE, the decision appealed from is SET ASIDE and
another one is rendered, finding appellant Thelma Reyes guilty
of illegal recruitment on two (2) counts and is hereby
sentenced for each crime to suffer imprisonment of 6 years
and 1 day to 8 years and pay a fine of P50,000.00; and
ordered to indemnify Rosalino Bitang in the amount of
P13,500.00 and Fabian Baradas in the amount of P18,000.00
and pay the costs.
ROSITA SY VS PEOPLE OF THE PHILIPPINES
G.R NO. 183879, APRIL 14, 2010
NACHURA, J.:
Before the Court is a petition for review on certiorari under
Rule 45 of the Rules of Court, assailing the Decision[1] dated
July 22, 2008 of the Court of Appeals (CA) in CA-G.R. CR No.
30628.
Rosita Sy (Sy) was charged with one count of illegal
recruitment in Criminal Case No. 02-0537 and one count of
estafa in Criminal Case No. 02-0536. In a joint decision of the
Regional Trial Court (RTC), Sy was exonerated of the illegal
recruitment charge. However, she was convicted of the crime
of estafa. Thus, the instant appeal involves only Criminal Case
No. 02-0536 for the crime of estafa.
The Information[2] for estafa reads:
That sometime in the month of March 1997, in the City of Las
Pias, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did, then and there willfully,
unlawfully and feloniously defraud Felicidad Mendoza-Navarro
y Landicho in the following manner, to wit: the said accused by
means of false pretenses and fraudulent representation which
she made to the said complainant that she can deploy her for
employment in Taiwan, and complainant convinced by said
representations, gave the amount of P120,000.00 to the said
accused for processing of her papers, the latter well knowing
that all her representations and manifestations were false and
were only made for the purpose of obtaining the said amount,
but once in her possession[,] she misappropriated, misapplied
and converted the same to her own personal use and benefit,
to the damage and prejudice of Felicidad Mendoza-Navarro y
Landicho in the aforementioned amount of P120,000.00.
CONTRARY TO LAW.[3]
On May 27, 2007, Sy was arraigned and pleaded not guilty to
the crimes charged. Joint trial ensued thereafter.
As summarized by the CA, the facts of the case are as follows:
Version of the Prosecution
Sometime in March 1997, appellant, accompanied by
Corazon Miranda (or Corazon), went to the house of
Corazons sister, Felicidad Navarro (or Felicidad), in
Talisay, Batangas to convince her (Felicidad) to work
abroad. Appellant assured Felicidad of a good salary and
entitlement to a yearly vacation if she decides to take a job
in Taiwan. On top of these perks, she shall receive
compensation in the amount of Php120,000.00. Appellant
promised Felicidad that she will take care of the
processing of the necessary documents, including her
passport and visa. Felicidad told appellant that she will
think about the job offer.
Two days later, Felicidad succumbed to appellants overseas
job solicitation. With Corazon in tow, the sisters proceeded to
appellants residence in Better Homes, Moonwalk, Las Pias
City. Thereat, Felicidad handed to appellant the amount of
Php60,000.00. In the third week of March 1997, Felicidad
returned to appellants abode and paid to the latter another
Php60,000.00. The latter told her to come back the
following day. In both instances, no receipt was issued by
appellant to acknowledge receipt of the total amount of
Php120,000.00 paid by Felicidad.
On Felicidads third trip to appellants house, the latter
brought her to Uniwide in Sta. Cruz, Manila, where a male
person showed to them the birth certificate that Felicidad
would use in applying for a Taiwanese passport. The birth
certificate was that of a certain Armida Lim, born to
Margarita Galvez and Lim Leng on 02 June 1952. Felicidad
was instructed on how to write Armida Lims Chinese
name.
Subsequently, appellant contacted Felicidad and thereafter
met her at the Bureau of Immigration office. Thereat,
Felicidad, posing and affixing her signature as Armida G.
Lim, filled out the application forms for the issuance of
Alien Certificate of Registration (ACR) and Immigrant
Certificate of Registration (ICR). She attached to the
application forms her own photo. Felicidad agreed to use the
name of Armida Lim as her own because she already paid to
appellant the amount of Php120,000.00.
In December 1999, appellant sent to Felicidad the birth
certificate of Armida Lim, the Marriage Contract of Armida Lims
parents, ACR No. E128390, and ICR No. 317614. These
documents were submitted to and eventually rejected by the
Taiwanese authorities, triggering the filing of illegal recruitment
and estafa cases against appellant.
Version of the Defense
Appellant denied offering a job to Felicidad or receiving
any money from her. She asserted that when she first
spoke to Felicidad at the latters house, she mentioned that
her husband and children freely entered Taiwan because
she was a holder of a Chinese passport. Felicidad
commented that many Filipino workers in Taiwan were
holding Chinese passports.
Three weeks later, Felicidad and Corazon came to her house
in Las Pias and asked her if she knew somebody who could
help Felicidad get a Chinese ACR and ICR for a fee.
Appellant introduced a certain Amelia Lim, who, in
consideration of the amount of Php120,000.00, offered to
Felicidad the use of the name of her mentally deficient
sister, Armida Lim. Felicidad agreed. On their second
meeting at appellants house, Felicidad paid Php60,000.00
to Amelia Lim and they agreed to see each other at
Uniwide the following day. That was the last time appellant
saw Felicidad and Amelia Lim.[4]
On January 8, 2007, the RTC rendered a decision,[5] the
dispositive portion of which reads:
WHEREFORE, premises considered the court finds the
accused Rosita Sy NOT GUILTY of the crime of Illegal
Recruitment and she is hereby ACQUITTED of the said
offense. As regards the charge of Estafa, the court finds the
accused GUILTY thereof and hereby sentences her to an
indeterminate penalty of four (4) years of prision correctional
as minimum to 11 years of prision mayor, as maximum. The
accused is ordered to reimburse the amount of sixty-thousand
(Php60,000.00) to the private complainant.
SO ORDERED.[6]
Aggrieved, Sy filed an appeal for her conviction of estafa.
On July 22, 2008, the CA rendered a Decision,[7] affirming
with modification the conviction of Sy, viz.:
WHEREFORE, with the MODIFICATION sentencing
accused-appellant to suffer the indeterminate penalty of
four (4) years and two (2) months of prision correccional,
as minimum, to seventeen (17) years of reclusion
temporal, as maximum, the appealed decision is AFFIRMED
in all other respects.
SO ORDERED.[8]
Hence, this petition.
The sole issue for resolution is
Issue:
Whether or not Sy should be held liable for estafa, penalized
under Article 315, paragraph 2(a) of the Revised Penal Code
(RPC).[9]
Swindling or estafa is punishable under Article 315 of the
RPC. There are three ways of committing estafa, viz.: (1)
with unfaithfulness or abuse of confidence; (2) by means
of false pretenses or fraudulent acts; or (3) through
fraudulent means. The three ways of committing estafa
may be reduced to two, i.e., (1) by means of abuse of
confidence; or (2) by means of deceit.
The elements of estafa in general are the following: (a) that an
accused defrauded another by abuse of confidence, or by
means of deceit; and (b) that damage and prejudice capable of
pecuniary estimation is caused the offended party or third
person.
The act complained of in the instant case is penalized under
Article 315, paragraph 2(a) of the RPC, wherein estafa is
committed by any person who shall defraud another by false
pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud. It is
committed by using fictitious name, or by pretending to
possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of
other similar deceits.
The elements of estafa by means of deceit are the following,
viz.: (a) that there must be a false pretense or fraudulent
representation as to his power, influence, qualifications,
property, credit, agency, business or imaginary transactions;
(b) that such false pretense or fraudulent representation was
made or executed prior to or simultaneously with the
commission of the fraud; (c) that the offended party relied on
the false pretense, fraudulent act, or fraudulent means and
was induced to part with his money or property; and (d) that,
as a result thereof, the offended party suffered damage.[10]
In the instant case, all the foregoing elements are present.
It was proven beyond reasonable doubt, as found by the
RTC and affirmed by the CA, that Sy misrepresented and
falsely pretended that she had the capacity to deploy
Felicidad Navarro (Felicidad) for employment in Taiwan.
The misrepresentation was made prior to Felicidads
payment to Sy of One Hundred Twenty Thousand Pesos
(P120,000.00). It was Sys misrepresentation and false
pretenses that induced Felicidad to part with her money.
As a result of Sys false pretenses and misrepresentations,
Felicidad suffered damages as the promised employment
abroad never materialized and the money she paid was
never recovered.
The fact that Felicidad actively participated in the
processing of the illegal travel documents will not
exculpate Sy from liability. Felicidad was a hapless victim
of circumstances and of fraud committed by Sy. She was
forced to take part in the processing of the falsified travel
documents because she had already paid P120,000.00. Sy
committed deceit by representing that she could secure
Felicidad with employment in Taiwan, the primary
consideration that induced the latter to part with her
money. Felicidad was led to believe by Sy that she
possessed the power and qualifications to provide
Felicidad with employment abroad, when, in fact, she was
not licensed or authorized to do so. Deceived, Felicidad
parted with her money and delivered the same to
petitioner. Plainly, Sy is guilty of estafa.
Illegal recruitment and estafa cases may be filed
simultaneously or separately. The filing of charges for
illegal recruitment does not bar the filing of estafa, and
vice versa. Sys acquittal in the illegal recruitment case
does not prove that she is not guilty of estafa. Illegal
recruitment and estafa are entirely different offenses and
neither one necessarily includes or is necessarily
included in the other. A person who is convicted of illegal
recruitment may, in addition, be convicted of estafa under
Article 315, paragraph 2(a) of the RPC.[11] In the same
manner, a person acquitted of illegal recruitment may be
held liable for estafa. Double jeopardy will not set in
because illegal recruitment is malum prohibitum, in which
there is no necessity to prove criminal intent, whereas
estafa is malum in se, in the prosecution of which, proof
of criminal intent is necessary.[12]
The penalty prescribed for estafa under Article 315 of the
RPC is prision correccional in its maximum period to
prision mayor in its minimum period, if the amount
defrauded is over Twelve Thousand Pesos (P12,000.00)
but does not exceed Twenty-two Thousand Pesos
(P22,000.00), and if such amount exceeds the latter sum,
the penalty shall be imposed in its maximum period,
adding one year for each additional Ten Thousand Pesos
(P10,000.00); but the total penalty that may be imposed
shall not exceed twenty years. In such cases, and in
connection with the accessory penalties that may be
imposed under the provisions of this Code, the penalty
shall be termed prision mayor or reclusion temporal, as
the case may be.
The addition of one year imprisonment for each additional
P10,000.00, in excess of P22,000.00, is the incremental
penalty. The incremental penalty rule is a mathematical
formula for computing the penalty to be actually imposed using
the prescribed penalty as the starting point. This special rule is
applicable in estafa and in theft.[13]
In estafa, the incremental penalty is added to the maximum
period of the penalty prescribed, at the discretion of the court,
in order to arrive at the penalty to be actually imposed, which is
the maximum term within the context of the Indeterminate
Sentence Law (ISL).[14] Under the ISL, attending
circumstances in a case are applied in conjunction with certain
rules of the Code in order to determine the penalty to be
actually imposed based on the penalty prescribed by the Code
for the offense. The circumstance is that the amount defrauded
exceeds P22,000.00, and the incremental penalty rule is
utilized to fix the penalty actually imposed.[15]

To compute the incremental penalty, the amount defrauded

shall be subtracted by P22,000.00, and the difference shall be
divided by P10,000.00, and any fraction of P10,000.00 shall be
discarded.[16]

In the instant case, prision correccional in its maximum period

to prision mayor in its minimum period is the imposable
penalty. The duration of prision correccional in its maximum
period is from four (4) years, two (2) months and one (1) day to
six (6) years; while prision mayor in its minimum period is from
six (6) years and one (1) day to eight (8) years. The
incremental penalty for the amount defrauded would be an
additional nine years imprisonment, to be added to the
maximum imposable penalty of eight years. Thus, the CA
committed no reversible error in sentencing Sy to an
indeterminate penalty of four (4) years and two (2) months of
prision correccional, as minimum, to seventeen (17) years of
reclusion temporal, as maximum.

As to the amount that should be returned or restituted by Sy,

the sum that Felicidad gave to Sy, i.e., P120,000.00, should be
returned in full. The fact that Felicidad was not able to produce
receipts is not fatal to the case of the prosecution since she
was able to prove by her positive testimony that Sy was the
one who received the money ostensibly in consideration of an
overseas employment in Taiwan.[17]

WHEREFORE, in view of the foregoing, the Decision of the

Court of Appeals dated July 22, 2008 in CA-G.R. CR No.
30628, sentencing petitioner Rosita Sy to an indeterminate
penalty of four (4) years and two (2) months of prision
correccional, as minimum, to seventeen (17) years of reclusion
temporal, as maximum, is hereby AFFIRMED. We, however,
MODIFY the CA Decision as to the amount of civil indemnity,
in that Sy is ordered to reimburse the amount of One Hundred
Twenty Thousand Pesos (P120,000.00) to private complainant
Felicidad Navarro.