*

G.R. No. 155076. February 27, 2006.

LUIS MARCOS P. LAUREL, petitioner, vs. HON. ZEUS C.

ABROGAR, Presiding Judge of the Regional Trial Court, Makati
City, Branch 150, PEOPLE OF THE PHILIPPINES & PHILIPPINE
LONG DISTANCE TELEPHONE COMPANY, respondents.

Actions; Appeals; Certiorari; The general rule is that a petition for

certiorari under Rule 65 of the Rules of Court, as amended, to nullify an
order denying a motion to quash the Information is inappropriate because
the aggrieved party has a remedy of appeal in the ordinary course of law.—
On the issue of whether or not the petition for certiorari instituted by the
petitioner in the CA is proper, the general rule is that a petition for certiorari
under Rule 65 of the Rules of Court, as amended, to nullify an order
denying a motion to quash the Information is inappropriate because the
aggrieved party has a remedy of appeal in the ordinary course of law.
Appeal and certiorari are mutually exclusive of each other. The remedy of
the aggrieved party is to continue with the case in due course and, when an
unfavorable judgment is rendered, assail the order and the decision on
appeal. However, if the trial court issues the order denying the motion to
quash the Amended Information with grave abuse of discretion amounting
to excess or lack of jurisdiction, or if such order is patently erroneous, or
null and void for being contrary to the Constitution, and the remedy of
appeal would not afford adequate and expeditious relief, the accused may
resort to the extraordinary remedy of certiorari. A special civil action for
certiorari is also available where there are special circumstances clearly
demonstrating the inadequacy of an appeal.
Criminal Law; Criminal Procedure; Information; An Information or
complaint must state explicitly and directly every act or omission
constituting an offense and must allege facts establishing conduct that a
penal statute makes criminal, and describes the property which is the
subject of the theft to advise the accused with reasonable certainty of the
accusation he is called upon to meet at the trial and to enable him to rely on
the judgment thereunder of a subsequent prose-

_______________

* FIRST DIVISION.

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244 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

cution for the same offense.—An information or complaint must state

explicitly and directly every act or omission constituting an offense and
must allege facts establishing conduct that a penal statute makes criminal;
and describes the property which is the subject of theft to advise the accused
with reasonable certainty of the accusation he is called upon to meet at the
trial and to enable him to rely on the judgment thereunder of a subsequent
prosecution for the same offense. It must show, on its face, that if the
alleged facts are true, an offense has been committed. The rule is rooted on
the constitutional right of the accused to be informed of the nature of the
crime or cause of the accusation against him. He cannot be convicted of an
offense even if proven unless it is alleged or necessarily included in the
Information filed against him.
Same; Same; Motions to Quash; As a general prerequisite, a motion to
quash on the ground that the Information does not constitute the offense
charged, or any offense for that matter, should be resolved on the basis of
said allegations whose truth and veracity are hypothetically committed, and
on additional facts admitted or not denied by the prosecution.—As a general
prerequisite, a motion to quash on the ground that the Information does not
constitute the offense charged, or any offense for that matter, should be
resolved on the basis of said allegations whose truth and veracity are
hypothetically committed; and on additional facts admitted or not denied by
the prosecution. If the facts alleged in the Information do not constitute an
offense, the complaint or information should be quashed by the court.
Same; Same; Same; Statutory Construction; The rule is that, penal
laws are to be construed strictly. Such rule is founded on the tenderness of
the law for the rights of individuals and on the plain principle that the
power of punishment is vested in Congress, not in the judicial department.
—The rule is that, penal laws are to be construed strictly. Such rule is
founded on the tenderness of the law for the rights of individuals and on the
plain principle that the power of punishment is vested in Congress, not in
the judicial department. It is Congress, not the Court, which is to define a
crime, and ordain its punishment. Due respect for the prerogative of
Congress in defining crimes/felonies constrains the Court to refrain from a
broad interpretation of penal laws where a “narrow interpretation” is
appropriate. The Court must take heed to language, legislative history and
purpose, in order to strictly determine the wrath and

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 Laurel vs. Abrogar

breath of the conduct the law forbids. However, when the congressional
purpose is unclear, the court must apply the rule of lenity, that is, ambiguity
concerning the ambit of criminal statutes should be resolved in favor of
lenity.
Same; Same; Same; Penal statutes may not be enlarged by implication
or intent beyond the fair meaning of the language used; and may not be held
to include offenses other than those which are clearly described.—Penal
statutes may not be enlarged by implication or intent beyond the fair
meaning of the language used; and may not be held to include offenses other
than those which are clearly described, notwithstanding that the Court may
think that Congress should have made them more comprehensive. Words
and phrases in a statute are to be construed according to their common
meaning and accepted usage.
Same; Same; Same; When interpreting a criminal statute that does not
explicitly reach the conduct in question, the Court should not base an
expansive reading on the inferences from subjective and variable
understanding.—As Chief Justice John Marshall declared, “it would be
dangerous, indeed, to carry the principle that a case which is within the
reason or mischief of a statute is within its provision, so far as to punish a
crime not enumerated in the statute because it is of equal atrocity, or of
kindred character with those which are enumerated. When interpreting a
criminal statute that does not explicitly reach the conduct in question, the
Court should not base an expansive reading on inferences from subjective
and variable understanding.
Same; Theft; For one to be guilty of theft, the accused must have an
intent to steal (animus furandi) personal property, meaning the intent to
deprive another of his ownership/lawful possession of personal property
which intent is apart from and concurrently with the general criminal intent
which is an essential element of a felony of dolo (dolus malus).—For one to
be guilty of theft, the accused must have an intent to steal (animus furandi)
personal property, meaning the intent to deprive another of his
ownership/lawful possession of personal property which intent is apart from
and concurrently with the general criminal intent which is an essential
element of a felony of dolo (dolus malus). An information or complaint for
simple theft must allege the following elements: (a) the taking of personal
property; (b) the said property belongs to another; (c) the taking be done

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246 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

with intent to gain; and (d) the taking be accomplished without the use of
violence or intimidation of person/s or force upon things.
Same; Same; Words and Phrases; The words “personal property”
standing alone, covers both tangible and intangible properties and are
subject of theft under the Revised Penal Code. The statutory definition of
“taking” and “movable property” indicates that, clearly, not all personal
properties may be the proper subjects of theft.—One is apt to conclude that
“personal property” standing alone, covers both tangible and intangible
properties and are subject of theft under the Revised Penal Code. But the
words “Personal property” under the Revised Penal Code must be
considered in tandem with the word “take” in the law. The statutory
definition of “taking” and movable property indicates that, clearly, not all
personal properties may be the proper subjects of theft. The general rule is
that, only movable properties which have physical or material existence and
susceptible of occupation by another are proper objects of theft. As
explained by Cuelo Callon: “Cosa juridicamente es toda sustancia corporal,
material, susceptible de ser aprehendida que tenga un valor cualquiera.”
Same; Same; Same; According to Cuello Callon, in the context of the
Penal Code, only those movable properties which can be taken and carried
from the place they are found are proper subjects of theft. Intangible
properties such as rights and ideas are not subject of theft because the same
cannot be “taken” from the place it is found and is occupied or
appropriated.—According to Cuello Callon, in the context of the Penal
Code, only those movable properties which can be taken and carried from
the place they are found are proper subjects of theft. Intangible properties
such as rights and ideas are not subject of theft because the same cannot be
“taken” from the place it is found and is occupied or appropriated.
Solamente las cosas muebles y corporales pueden ser objeto de hurto. La
sustracción de cosas inmuebles y la cosas incorporales (v. gr., los derechos,
las ideas) no puede integrar este delito, pues no es posible asirlas, tomarlas,
para conseguir su apropiación. El Codigo emplea la expresión “cosas
mueble” en el sentido de cosa que es susceptible de ser llevada del lugar
donde se encuentra, como dinero, joyas, ropas, etcétera, asi que su
concepto no coincide por completo con el formulado por el Codigo civil
(arts. 335 y 336).

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Laurel vs. Abrogar

Same; Same; Same; Movable properties under Article 308 of the

Revised Penal Code should be distinguished from the rights or interests to
which they relate. A naked right existing merely in contemplation of law,
although it may be very valuable to the person who is entitled to exercise it,
is not the subject of theft or larceny.—Movable properties under Article 308
of the Revised Penal Code should be distinguished from the rights or
interests to which they relate. A naked right existing merely in
contemplation of law, although it may be very valuable to the person who is
entitled to exercise it, is not the subject of theft or larceny. Such rights or
interests are intangible and cannot be “taken” by another. Thus, right to
produce oil, good will or an interest in business, or the right to engage in
business, credit or franchise are properties. So is the credit line represented
by a credit card. However, they are not proper subjects of theft or larceny
because they are without form or substance, the mere “breath” of the
Congress. On the other hand, goods, wares and merchandise of businessmen
and credit cards issued to them are movable properties with physical and
material existence and may be taken by another; hence, proper subjects of
theft.
Same; Same; Same; There is “taking” of personal property, and theft is
consummated when the offender unlawfully acquires possession of personal
property even if for a short time; or if such property is under the dominion
and control of the thief.—There is “taking” of personal property, and theft is
consummated when the offender unlawfully acquires possession of personal
property even if for a short time; or if such property is under the dominion
and control of the thief. The taker, at some particular amount, must have
obtained complete and absolute possession and control of the property
adverse to the rights of the owner or the lawful possessor thereof. It is not
necessary that the property be actually carried away out of the physical
possession of the lawful possessor or that he should have made his escape
with it. Neither asportation nor actual manual possession of property is
required. Constructive possession of the thief of the property is enough.
Same; Same; Same; The essence of the element is the taking of a thing
out of the possession of the owner without his privity and consent and
without animus revertendi.—The essence of the element is the taking of a
thing out of the possession of the owner without his privity and consent and
without animus revertendi. Taking may be by the offender’s own hands, by
his use of innocent persons without

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Laurel vs. Abrogar

any felonious intent, as well as any mechanical device, such as an access

device or card, or any agency, animate or inanimate, with intent to gain.
Intent to gain includes the unlawful taking of personal property for the
purpose of deriving utility, satisfaction, enjoyment and pleasure.
Same; Same; Same; In defining theft, under Article 308 of the Revised
Penal Code, as the taking of personal property without the consent of the
owner thereof, the Philippine legislature could not have contemplated the
human voice which is converted into electronic impulses or electrical
current which are transmitted to the party called through the PSTN of
respondent PLDT and ISR of Baynet Card Ltd. within its coverage.—In
defining theft, under Article 308 of the Revised Penal Code, as the taking of
personal property without the consent of the owner thereof, the Philippine
legislature could not have contemplated the human voice which is converted
into electronic impulses or electrical current which are transmitted to the
party called through the PSTN of respondent PLDT and the ISR of Baynet
Card Ltd. within its coverage. When the Revised Penal Code was approved,
on December 8, 1930, international telephone calls and the transmission and
routing of electronic voice signals or impulses emanating from said calls,
through the PSTN, IPL and ISR, were still non-existent. Case law is that,
where a legislative history fails to evidence congressional awareness of the
scope of the statute claimed by the respondents, a narrow interpretation of
the law is more consistent with the usual approach to the construction of the
statute. Penal responsibility cannot be extended beyond the fair scope of the
statutory mandate.
Words and Phrases; A “phreaker” is one who engages in the act of
manipulating phones and illegally markets telephone services. Unless the
phone company replaces all its hardware, phreaking would be impossible to
stop.—The conduct complained of by respondent PLDT is reminiscent of
“phreaking” (a slang term for the action of making a telephone system to do
something that it normally should not allow by “making the phone company
bend over and grab its ankles”). A “phreaker” is one who engages in the act
of manipulating phones and illegally markets telephone services. Unless the
phone company replaces all its hardware, phreaking would be impossible to
stop. The phone companies in North America were impelled to replace all
their hardware and adopted full digital switching system known as the
Common Channel Inter Office Signaling.

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Laurel vs. Abrogar

Phreaking occurred only during the 1960’s and 1970’s, decades after the
Revised Penal Code took effect.
Criminal Law; Information; Theft; The petitioner is not charged, under
the Amended Information, for theft of telecommunication or telephone
services offered by PLDT. Even if he is, the term “personal property” under
Article 308 of the Revised Penal Code cannot be interpreted beyond its
seams so as to include “telecommunication or telephone services” or
computer services for that matter.—The petitioner is not charged, under the
Amended Information, for theft of telecommunication or telephone services
offered by PLDT. Even if he is, the term “personal property” under Article
308 of the Revised Penal Code cannot be interpreted beyond its seams so as
to include “telecommunication or telephone services” or computer services
for that matter. The word “service” has a variety of meanings dependent
upon the context, or the sense in which it is used; and, in some instances, it
may include a sale. For instance, the sale of food by restaurants is usually
referred to as “service,” although an actual sale is involved. It may also
mean the duty or labor to be rendered by one person to another;
performance of labor for the benefit of another. In the case of PLDT, it is to
render local and international telecommunications services and such other
services as authorized by the CPCA issued by the NTC. Even at common
law, neither time nor services may be taken and occupied or appropriated. A
service is generally not considered property and a theft of service would not,
therefore, constitute theft since there can be no caption or asportation.
Neither is the unauthorized use of the equipment and facilities of PLDT by
the petitioner theft under the aforequoted provision of the Revised Penal
Code.
Same; Same; Republic Act 8484 (Access Devices Regulation Act of
1998); Among the prohibited acts enumerated in Section 9 of Republic Act
8484 are the acts of obtaining money or anything of value through the use of
an access device, with intent to defraud or intent to gain and fleeing
thereafter; and of effecting transactions with one or more access devices
issued to another person or persons to receive payment or any other thing of
value. Under Section 11 of the law, conspiracy to commit access devices
fraud is a crime.—In the Philippines, Congress has not amended the
Revised Penal Code to include theft of services or theft of business as
felonies. Instead, it approved a law, Republic Act No. 8484, otherwise
known as the Access Devices Regulation Act of 1998, on February 11,
1998. Under the law, an

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Laurel vs. Abrogar

access device means any card, plate, code, account number, electronic serial
number, personal identification number and other telecommunication
services, equipment or instrumentalities-identifier or other means of account
access that can be used to obtain money, goods, services or any other thing
of value or to initiate a transfer of funds other than a transfer originated
solely by paper instrument. Among the prohibited acts enumerated in
Section 9 of the law are the acts of obtaining money or anything of value
through the use of an access device, with intent to defraud or intent to gain
and fleeing thereafter; and of effecting transactions with one or more access
devices issued to another person or persons to receive payment or any other
thing of value. Under Section 11 of the law, conspiracy to commit access
devices fraud is a crime. However, the petitioner is not charged of violation
of R.A. 8484.

PETITION for review on certiorari of a decision of the Court of

Appeals.

The facts are stated in the opinion of the Court.

Salonga, Hernandez & Mendoza for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Philippine
Long Distance Telephone Company.

CALLEJO, SR., J.:

1
Before us is a Petition for Review on Certiorari of the Decision of
the Court of Appeals (CA) in CA-G.R. SP No. 68841 affirming the
Order issued by Judge Zeus C. Abrogar, Regional Trial Court
(RTC), Makati City, Branch 150, which denied the “Motion to
Quash (With Motion to Defer Arraignment)” in Criminal Case No.
99-2425 for theft.
Philippine Long Distance Telephone Company (PLDT) is the
holder of a legislative franchise to render local and international
telecommunication services under Republic Act No.

_______________

1 Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices

Roberto A. Barrios and Edgardo F. Sundiam, concurring.

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Laurel vs. Abrogar
2
7082. Under said law, PLDT is authorized to establish, operate,
manage, lease, maintain and purchase telecommunication systems,
including transmitting, receiving and switching stations, for both
domestic and international calls. For this purpose, it has installed an
estimated 1.7 million telephone lines nationwide. PLDT also offers
other services as authorized by Certificates of Public Convenience
and Necessity (CPCN) duly issued by the National
Telecommunications Commission (NTC), and operates and
maintains an International Gateway Facility (IGF). The PLDT
network is thus principally composed of the Public Switch
Telephone Network (PSTN), telephone handsets and/or
telecommunications equipment used by its subscribers, the wires
and cables linking said telephone handsets and/or
telecommunications equipment, antenna, the IGF, and other 3
telecommunications equipment which provide interconnections.
 PLDT alleges that one of the alternative calling patterns that
constitute network fraud and violate its network integrity is that
which is known as International Simple Resale (ISR). ISR is a
method of routing and completing international long distance calls
using International Private Leased Lines (IPL), cables, antenna or air
wave or frequency, which connect directly to the local or domestic
exchange facilities of the terminating country (the country where the
call is destined). The IPL is linked to switching equipment which is
connected to a PLDT telephone line/number. In the process, the calls
bypass the IGF found at the terminating country, 4
or in some
instances, even those from the originating country.

_______________

2 AN ACT FURTHER AMENDING ACT NO. 3436, AS AMENDED, “X X X

CONSOLIDATING THE TERMS AND CONDITIONS OF THE FRANCHISE
GRANTED TO [PLDT], AND EXTENDING THE SAID FRANCHISE BY
TWENTY-FIVE (25) YEARS FROM THE EXPIRATION THEREOF X X X.”
3 Rollo, pp. 129-130.
4 Id., at p. 131.

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252 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

One such alternative calling service is that offered by Baynet Co.,

Ltd. (Baynet) which sells “Bay Super Orient Card” phone cards to
people who call their friends and relatives in the Philippines. With
said card, one is entitled to a 27-minute call to the Philippines for
about ¥37.03 per minute. After dialing the ISR access number
indicated in the phone card, the ISR operator requests the subscriber
to give the PIN number also indicated in the phone card. Once the
caller’s identity (as purchaser of the phone card) is confirmed, the
ISR operator will then provide a Philippine local line to the
requesting caller via the IPL. According to PLDT, calls made
through the IPL never pass the toll center of IGF operators in the
Philippines. Using the local line, the Baynet card user is able to
place a call to any point in the Philippines,
5
provided the local line is
National Direct Dial (NDD) capable.
PLDT asserts that Baynet conducts its ISR activities by utilizing
an IPL to course its incoming international long distance calls from
Japan. The IPL is linked to switching equipment, which is then
connected to PLDT telephone lines/ numbers and equipment, with
Baynet as subscriber. Through the use of the telephone lines and
other auxiliary equipment, Baynet is able to connect an international
long distance call from Japan to any part of the Philippines, and
make it appear as a call originating from Metro Manila.
Consequently, the operator of an ISR is able to evade payment of
access, termination or bypass charges and accounting rates, as well
as compliance with the regulatory requirements of the NTC. Thus,
the ISR operator offers international telecommunication services at a
lower rate,
6
to the damage and prejudice of legitimate operators like
PLDT.
PLDT pointed out that Baynet utilized the following equipment
for its ISR activities: lines, cables, and antennas or equipment or
device capable of transmitting air waves or

_______________

5 Id., at pp. 131, 137.

6 Id.

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Laurel vs. Abrogar

frequency, such as an IPL and telephone lines and equipment;

computers or any equipment or device capable of accepting
information applying the prescribed process of the information and
supplying the result of this process; modems or any equipment or
device that enables a data terminal equipment such as computers to
communicate with other data terminal equipment via a telephone
line; multiplexers or any equipment or device that enables two or
more signals from different sources to pass through a common cable
or transmission line; switching equipment, or equipment or device
capable of connecting telephone lines; and software, diskettes, tapes
7
or equipment or device used for recording and storing information.
PLDT also discovered that Baynet
8
subscribed to a total of 123
PLDT telephone lines/numbers. Based on the Traffic Study
conducted on the volume of calls passing through Baynet’s ISR
network which bypass the IGF toll center, 9
PLDT incurred an
estimated monthly loss of P10,185,325.96. Records at the Securities
and Exchange Commission (SEC) also revealed that Baynet was not
authorized to provide international or domestic long distance
telephone service in the country. The following are its officers: Yuji
Hijioka, a Japanese national (chairman of the board of directors);
Gina C. Mukaida, a Filipina (board member and president); Luis
Marcos P. Laurel, a Filipino (board member and corporate
secretary); Ricky Chan Pe, a Filipino (board member and treasurer);
and Yasushi Ueshima, also a Japanese national (board member).
Upon complaint of PLDT against Baynet 10
for network fraud, and
on the strength of two search warrants issued by the RTC of
Makati, Branch 147, National Bureau of Investigation (NBI) agents
searched its office at the 7th Floor, SJG Building, Kalayaan Avenue,
Makati City on November 8, 1999.

_______________

7 Id., at p. 138.
8 Id., at p. 134.
9 Id., at p. 140.
10 Id., at pp. 142-146.

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254 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

Atsushi Matsuura, Nobuyoshi Miyake, Edourd D. Lacson and

Rolando J. Villegas were arrested by NBI agents while in the act of
manning the operations of Baynet. Seized in the premises during the
search were numerous equipment and devices used in its ISR
activities, such as multiplexers, modems, computer monitors, CPUs,
antenna, assorted computer peripheral cords and microprocessors,
cables/wires, assorted PLDT statement of accounts, parabolic
antennae and voltage regulators.
State Prosecutor Ofelia L. Calo 11
conducted an inquest
investigation and issued a Resolution on January 28, 2000, finding
probable cause for theft under Article 30812
of the Revised Penal
Code and Presidential Decree No. 401 against the respondents
therein, including Laurel.

_______________

11 Rollo, pp. 243-246.

12 NOW, THEREFORE, I FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as Commander-
in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No.
1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972,
as amended, do hereby order and decree that any person who installs any water,
electrical or telephone connection without previous authority from the Metropolitan
Waterworks and Sewerage System, the Manila Electric Company or the Philippine
Long Distance Telephone Company, as the case may be; tampers and/or uses
tampered water or electrical meters or jumpers or other devices whereby water or
electricity is stolen; steals or pilfers water and/or electric meters or water, electric
and/or telephone wires; knowingly possesses stolen or pilfered water and/or electrical
meters as well as stolen or pilfered water, electrical and/or telephone wires, shall,
upon conviction, be punished by prision correccional in its minimum period or a fine
ranging from two thousand to six thousand pesos, or both. If the violation is
committed with the connivance or permission of an employee or officer of the
Metropolitan Waterworks and Sewerage System, or the Manila Electric Company, or
the Philippine Long Distance Telephone Company, such employee or officer shall,
upon conviction, be punished by a penalty one degree lower than prision correccional
in its minimum period and forthwith be dismissed and

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Laurel vs. Abrogar

On February 8, 2000, State Prosecutor Calo filed an Information

with the RTC of Makati City charging Matsuura, Miyake, Lacson
and Villegas with theft under Article 308 of the Revised Penal Code.
After conducting the requisite preliminary investigation, the State
Prosecutor filed an Amended Information impleading Laurel (a
partner in the law firm of Ingles, Laurel, Salinas, and, until
November 19, 1999, a member of the board of directors and
corporate secretary of Baynet), and the other members of the board
of directors of said corporation, namely, Yuji Hijioka, Yasushi
Ueshima, Mukaida, Lacson and Villegas, as accused for theft under
Article 308 of the Revised Penal Code. The inculpatory portion of
the Amended Information reads:

“On or about September 10-19, 1999, or prior thereto, in Makati City, and
within the jurisdiction of this Honorable Court, the accused, conspiring and
confederating together and all of them mutually helping and aiding one
another, with intent to gain and without the knowledge and consent of the
Philippine Long Distance Telephone (PLDT), did then and there willfully,
unlawfully and feloniously take, steal and use the international long
distance calls belonging to PLDT by conducting International Simple
Resale (ISR), which is a method of routing and completing international
long distance calls using lines, cables, antennae, and/or air wave frequency
which connect directly to the local or domestic exchange facilities of the
country where the call is destined, effectively stealing this business from
PLDT while using its facilities in the estimated amount of P20,370,651.92
to the damage and prejudice 13of PLDT, in the said amount.
CONTRARY TO LAW.”

Accused Laurel filed a “Motion to Quash (with Motion to Defer

Arraignment)” on the ground that the factual allegations in the
Amended Information do not constitute the felony of theft under
Article 308 of the Revised Penal Code. He

_______________

perpetually disqualified from employment in any public or private utility or

service company.
13 Rollo, pp. 57-58 (Italics supplied).

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256 SUPREME COURT REPORTS ANNOTATED
Laurel vs. Abrogar

averred that the Revised Penal Code, or any other special penal law
for that matter, does not prohibit ISR operations. He claimed that
telephone calls with the use of PLDT telephone lines, whether
domestic or international, belong to the persons making the call, not
to PLDT. He argued that the caller merely uses the facilities of
PLDT, and what the latter owns are the telecommunication
infrastructures or facilities through which the call is made. He also
asserted that PLDT is compensated for the caller’s use of its
facilities by way of rental; for an outgoing overseas call, PLDT
charges the caller per minute, based on the duration of the call. Thus,
no personal property was stolen from PLDT. According to Laurel,
the P20,370,651.92 stated in the Information, if anything, represents
the rental for the use of PLDT facilities, and not the value of
anything owned by it. Finally, he averred that the allegations in the
Amended Information are already subsumed under the Information
for violation of Presidential Decree (P.D.) No. 401 filed and pending
in the Metropolitan Trial Court of Makati City, docketed as Criminal
Case No. 276766.
The 14prosecution, through private complainant PLDT, opposed the
motion, contending that the movant unlawfully took personal
property belonging to it, as follows: 1) intangible telephone services
that are being offered by PLDT and other telecommunication
companies, i.e., the connection and interconnection to their
telephone lines/facilities; 2) the use of those facilities over a period
of time; and 3) the revenues derived in connection
15
with the rendition
of such services and the use of such facilities.
The prosecution asserted that the use of PLDT’s intangible
telephone services/facilities allows electronic voice signals to pass
through the same, and ultimately to the called party’s number. It
averred that such service/facility is akin to elec-

_______________

14 Id., at pp. 67-76.

15 Id., at p. 69 (Emphasis supplied).

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Laurel vs. Abrogar

tricity which, although an intangible property, may, nevertheless, be

appropriated and be the subject of theft. Such service over a period
of time for a consideration is the business that PLDT provides to its
customers, which enables the latter to send various messages to
installed recipients. The service rendered by PLDT is akin to
merchandise which has specific value, and therefore, capable of
appropriation by another, as in this case, through the ISR operations
conducted by the movant and his co-accused.
The prosecution further alleged that “international business calls
and revenues constitute personal property envisaged in Article 308
of the Revised Penal Code.” Moreover, the intangible telephone
services/facilities belong to PLDT and not to the movant and the
other accused, because they have no telephone services and facilities
of their own duly authorized by the NTC; thus, the taking by the
movant and his co-accused of PLDT services was with intent to gain
and without the latter’s consent.
The prosecution pointed out that the accused, as well as the
movant, were paid in exchange for their illegal appropriation and
use of PLDT’s telephone services and facilities; on the other hand,
the accused did not pay a single centavo for their illegal ISR
operations. Thus, the acts of the accused were akin to the use of a
“jumper” by a consumer to deflect the current from the house
electric meter, thereby enabling one to steal electricity. The
prosecution emphasized that its position is fortified by the
Resolutions of the Department of Justice in PLDT v. Tiongson, et al.
(I.S. No. 97-0925) and in PAOCTF-PLDT v. Elton John Tuason, et
al. (I.S. No. 2000-370) which were issued on August 14, 2000
finding probable cause for theft against the respondents16therein.
On September 14, 2001, the RTC issued an Order denying the
Motion to Quash the Amended Information. The court declared that,
although there is no law that expressly prohib-

_______________

16 Id., at pp. 77-80.

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258 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

its the use of ISR, the facts alleged in the Amended Information
“will show how the alleged crime was committed by conducting
ISR,” to the damage and prejudice of PLDT. 17
Laurel filed a Motion for Reconsideration of the Order, alleging
that international long distance calls are not personal property, and
are not capable of appropriation. He maintained that business or
revenue is not considered personal property, and that the prosecution
failed to adduce proof of its existence and the subsequent loss of
personal property belonging to another.18
Citing the ruling of the
Court in United States v. De Guzman, Laurel averred that the case
is not one with telephone calls which originate with a particular
caller and terminates with the called party. He insisted that telephone
calls are considered privileged communications under the
Constitution and cannot be considered as “the property of PLDT.”
He further argued that there is no kinship between telephone calls
and electricity or gas, as the latter are forms of energy which are
generated and consumable, and may be considered as personal
property because of such characteristic. On the other hand, the
movant argued, the telephone business is not a form of energy but is
an activity. 19
In its Order dated December 11, 2001, the RTC denied the
movant’s Motion for Reconsideration. This time, it ruled that what
was stolen from PLDT was its “business” because, as alleged in the
Amended Information, the international long distance calls made
through the facilities of PLDT formed part of its business. The RTC
noted that the movant was charged with stealing the business 20
of
PLDT. To support its ruling, it cited Strochecker v. Ramirez, where
the Court ruled that interest in business is personal property capable
of appropriation. It further declared that, through their ISR
operations, the movant and his co-accused deprived PLDT of

_______________

17 Id., at pp. 81-86.

18 31 Phil. 494 (1915).
19 Rollo, pp. 87-94.
20 44 Phil. 933, 935 (1922).

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fees for international long distance calls, and that the ISR used by
the movant and his co-accused was no different from the “jumper”
used for stealing electricity.
Laurel then filed a Petition for Certiorari with the CA, assailing
the Order of the RTC. He alleged that the respondent judge gravely
abused his discretion
21
in denying his Motion to Quash the Amended
Information. As gleaned from the material averments of the
amended information, he was charged with stealing the international
long distance calls belonging to PLDT, not its business. Moreover,
the RTC failed to distinguish between the business of PLDT
(providing services for international long distance calls) and the
revenues derived therefrom. He opined that a “business” or its
revenues cannot be considered as personal property under Article
308 of the Revised Penal Code, since a “business” is “(1) a
commercial or mercantile activity customarily engaged in as a
means of livelihood and typically involving some independence of
judgment and power of decision; (2) a commercial or industrial
enterprise; and (3) refers to transactions, dealings or intercourse of
any nature.” On the other hand, the term “revenue” is defined as “the
income that comes back from an investment (as in real or personal
property); the annual or periodical rents, profits,
22
interests, or issues
of any species of real or personal property.”
Laurel further posited that an electric company’s business is the
production and distribution of electricity; a gas company’s business
is the production and/or distribution of gas (as fuel); while a water
company’s business is the production and distribution of potable
water. He argued that the “business” in all these cases is the
commercial activity, while the goods and merchandise are the
products of such activity. Thus, in prosecutions for theft of certain
forms of energy, it is the electricity or gas which is alleged to be
stolen and not the “business” of providing electricity or gas.
However, since a

_______________

21 CA Rollo, p. 6.
22 Id., at pp. 9-11.

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260 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

telephone company does not produce any energy, goods or

merchandise and merely renders a service or, in the words of PLDT,
“the connection and interconnection to their telephone
lines/facilities,” such service cannot be the subject
23
of theft as
defined in Article 308 of the Revised Penal Code.
He further declared that to categorize “business” as personal
property under Article 308 of the Revised Penal Code would lead to
absurd consequences; in prosecutions for theft of gas, electricity or
water, it would then be permissible to allege in the Information that
it is the gas business, the electric business or the water business
which has been24stolen, and no longer the merchandise produced by
such enterprise.
Laurel further 25cited the Resolution of the Secretary of Justice in
Piltel v. Mendoza, where it was ruled that the Revised Penal Code,
legislated as it was before present technological advances were even
conceived, is not adequate to address the novel means of “stealing”
airwaves or airtime. In said resolution, it was noted that the
inadequacy prompted the filing of Senate Bill 2379 (sic) entitled
“The Anti-Telecommunications Fraud of 1997” to deter cloning of
cellular phones and other forms of communications fraud. The said
bill “aims to protect in number (ESN) (sic) or Capcode, mobile
identification number (MIN), electronic-international mobile
equipment identity (EMEI/IMEI), or subscriber identity module”
and “any attempt to duplicate the data on another cellular phone
without the consent 26of a public telecommunications entity would be
punishable by law.” Thus, Laurel concluded, “there is no crime if
there is no law punishing the crime.”
On August
27
30, 2002, the CA rendered judgment dismissing the
petition. The appellate court ruled that a petition for

_______________

23 Id.
24 Id.
25 Resolution No. 149, Series of 1999 dated April 16, 1999 (I.S. No. 96-3884),
Rollo, pp. 95-97.
26 Id.
27 Id., at pp. 32-47.

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certiorari under Rule 65 of the Rules of Court was not the proper
remedy of the petitioner. On the merits of the petition, it held that
while business is generally an activity which is abstract and
intangible in form, it is nevertheless considered “property” under
Article 308 of the Revised Penal Code. The CA opined that PLDT’s
business of providing international calls is personal property which
28
may be the object of theft, and cited United States v. Carlos to
support 29such conclusion. The tribunal also cited Strochecker v.
Ramirez, where this Court ruled that one-half interest in a day’s
business is personal property under Section 2 of Act No. 3952,
otherwise known as the Bulk Sales Law. The appellate court held
that the operations of the ISR are not subsumed in the charge for
violation of P.D. No. 401.
Laurel, now the petitioner, assails the decision of the CA,
contending that—

THE COURT OF APPEALS ERRED IN RULING THAT THE

PERSONAL PROPERTY ALLEGEDLY STOLEN PER THE
INFORMATION IS NOT THE “INTERNATIONAL LONG DISTANCE
CALLS” BUT THE “BUSINESS OF PLDT.”
THE COURT OF APPEALS ERRED IN RULING THAT THE TERM
“BUSINESS” IS PERSONAL PROPERTY WITHIN
30
THE MEANING OF
ART. 308 OF THE REVISED PENAL CODE.
Petitioner avers that the petition for a writ of certiorari may be filed
to nullify an interlocutory order of the trial court which was issued
with grave abuse of discretion amounting to excess or lack of
jurisdiction. In support of his petition before the Court, he reiterates
the arguments in his pleadings filed before the CA. He further
claims that while the right to carry on a business or an interest or
participation in business is considered property under the New Civil
Code, the term “business,” however, is not. He asserts that the
Philippine

_______________

28 21 Phil. 553 (1911).

29 Supra note 20, at p. 935.
30 Rollo, pp. 18-19.

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262 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

Legislature, which approved the Revised Penal Code way back in

January 1, 1932, could not have contemplated to include
international long distance calls and “business” as personal property
under Article 308 thereof.
In its comment on the petition, the Office of the Solicitor General
(OSG) maintains that the amended information clearly states all the
essential elements of the crime of theft. Petitioner’s interpretation as
to whether an “international long distance call” is personal property
under the law is inconsequential, as a reading of the amended
information readily reveals that specific acts and circumstances were
alleged charging Baynet, through its officers, including petitioner, of
feloniously taking, stealing and illegally using international long
distance calls belonging to respondent PLDT by conducting ISR
operations, thus, “routing and completing international long distance
calls using lines, cables, antenna and/or airwave frequency which
connect directly to the local or domestic exchange facilities of the
country where the call is destined.” The OSG maintains that the
international long distance calls alleged in the amended information
should be construed to mean “business” of PLDT, which, while
abstract and intangible
31
in form, is personal property susceptible of
appropriation. The OSG avers that what was stolen by petitioner
and his co-accused is the business of PLDT providing international
long distance
32
calls which, though intangible, is personal property of
the PLDT.
For its part, respondent PLDT asserts that personal property
under Article 308 of the Revised Penal Code comprehends
intangible property such as electricity and gas which are valuable
articles for merchandise, brought and sold like other personal
property, and are capable of appropriation. It insists that the business
of international calls and revenues constitute personal property
because the same are valuable articles of merchandise. The
respondent reiterates that inter-

_______________

31 Id., at p. 689.
32 Id., at p. 691.

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national calls involve (a) the intangible telephone services that are
being offered by it, that is, the connection and interconnection to the
telephone network, lines or facilities; (b) the use of its telephone
network, lines or facilities over a33 period of time; and (c) the income
derived in connection therewith.
PLDT further posits that business revenues or the income derived
in connection with the rendition of such services and the use of its
telephone network, lines or facilities are personal properties under
Article 308 of the Revised Penal Code; so is the use of said
telephone services/telephone network, lines or facilities which allow
electronic voice signals to pass through the same and ultimately to
the called party’s number. It is akin to electricity which, though
intangible property, may nevertheless be appropriated and can be the
object of theft. The use of respondent PLDT’s telephone network,
lines, or facilities over a period of time for consideration is the
business that it provides to its customers, which enables the latter to
send various messages to intended recipients. Such use over a period
of time is akin to merchandise which has value and, therefore, can
be appropriated by another. According to respondent PLDT, this is
what actually happened when petitioner Laurel 34
and the other
accused below conducted illegal ISR operations.
The petition is meritorious.
The issues for resolution are as follows: (a) whether or not the
petition for certiorari is the proper remedy of the petitioner in the
Court of Appeals; (b) whether or not international telephone calls
using Bay Super Orient Cards through the telecommunication
services provided by PLDT for such calls, or, in short, PLDT’s
business of providing said telecommunication services, are proper
subjects of theft under Article 308 of the Revised Penal Code; and
(c) whether or not the trial court committed grave abuse of
discretion amounting to
_______________

33 Id., at pp. 669-670.

34 Rollo, p. 670.

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264 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

excess or lack of jurisdiction in denying the motion of the petitioner

to quash the amended information.
On the issue of whether or not the petition for certiorari
instituted by the petitioner in the CA is proper, the general rule is
that a petition for certiorari under Rule 65 of the Rules of Court, as
amended, to nullify an order denying a motion to quash the
Information is inappropriate because the aggrieved party has a
remedy of appeal in the ordinary course of law. Appeal and
certiorari are mutually exclusive of each other. The remedy of the
aggrieved party is to continue with the case in due course and, when
an unfavorable judgment is rendered, assail the order and the
decision on appeal. However, if the trial court issues the order
denying the motion to quash the Amended Information with grave
abuse of discretion amounting to excess or lack of jurisdiction, or if
such order is patently erroneous, or null and void for being contrary
to the Constitution, and the remedy of appeal would not afford
adequate and expeditious relief, the35 accused may resort to the
extraordinary remedy of certiorari. A special civil action for
certiorari is also available where there are special circumstances
clearly demonstrating the inadequacy of an appeal. 36
As this Court
held in Bristol Myers Squibb (Phils.), Inc. v. Viloria:

“Nonetheless, the settled rule is that a writ of certiorari may be granted in

cases where, despite availability of appeal after trial, there is at least a prima
facie showing on the face of the petition and its annexes that: (a) the trial
court issued the order with grave abuse of discretion amounting to lack of or
in excess of jurisdiction; (b) appeal would not prove to be a speedy and
adequate remedy; (c) where the order is a patent nullity; (d) the decision in
the present case will arrest future litigations; and37 (e) for certain
considerations such as public welfare and public policy.”

_______________

35 Madarang v. Court of Appeals, G.R. No. 143044, July 14, 2005, 463 SCRA
318, 327 (2005).
36 G.R. No. 148156, September 27, 2004, 439 SCRA 202 (2004).
37 Id., at p. 211.

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 VOL. 483, FEBRUARY 27, 2006 265
Laurel vs. Abrogar

In his petition for certiorari in the CA, petitioner averred that the
trial court committed grave abuse of its discretion amounting to
excess or lack of jurisdiction when it denied his motion to quash the
Amended Information despite his claim that the material allegations
in the Amended Information do not charge theft under Article 308 of
the Revised Penal Code, or any offense for that matter. By so doing,
the trial court deprived him of his constitutional right to be informed
of the nature of the charge against him. He further averred that the
order of the trial court is contrary to the constitution and is, thus,
null and void. He insists that he should not be compelled to undergo
the rigors and tribulations of a protracted trial and incur expenses to
defend himself against a nonexistent charge.
Petitioner is correct.
An information or complaint must state 38explicitly and directly
every act or omission constituting an offense and must allege39 facts
establishing conduct that a penal statute makes criminal; and
describes the property which is the subject of theft to advise the
accused with reasonable certainty of the accusation he is called upon
to meet at the trial and to enable him to rely on the judgment 40
thereunder of a subsequent prosecution for the same offense. It
must show, on its face, that if the alleged facts are true, an offense
has been committed. The rule is rooted on the constitutional right of
the accused to be informed of the nature of the crime or cause of the
accusation against him. He cannot be convicted of an offense even if
proven unless it is alleged or necessarily included in the Information
filed against him.
As a general prerequisite, a motion to quash on the ground that
the Information does not constitute the offense charged,

_______________

38 Section 9, Rule 110 of the Revised Rules of Criminal Procedure.

39 People v. Weg, 450 N.Y.S.2d 957 (1982).
40 Clines v. Commonwealth, 298 S.W. 1107 (1927).

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266 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

or any offense for that matter, should be resolved on the basis of said41
allegations whose truth and veracity are hypothetically committed;42
and on additional facts admitted or not denied by the prosecution.
If the facts alleged in the Information do not constitute an offense,
43
the complaint or information should be quashed by the court.
We have reviewed the Amended Information and find that, as
mentioned by the petitioner, it does not contain material allegations
charging the petitioner of theft of personal property under Article
308 of the Revised Penal Code. It, thus, behooved the trial court to
quash the Amended Information. The Order of the trial court
denying the motion of the petitioner to quash the Amended
Information is a patent nullity.
On the second issue, we find and so hold that the international
telephone calls placed by Bay Super Orient Card holders, the
telecommunication services provided by PLDT and its business of
providing said services are not personal properties under Article 308
of the Revised Penal Code. The construction by the respondents of
Article 308 of the said Code to include, within its coverage, the
aforesaid international telephone calls, telecommunication services
and business is contrary to the letter and intent of the law.
The rule is that, penal laws are to be construed strictly. Such rule
is founded on the tenderness of the law for the rights of individuals
and on the plain principle that the power of punishment is vested in
Congress, not in the judicial department. It is Congress, not 44
the
Court, which is to define a crime, and ordain its punishment. Due
respect for the prerogative of Congress in defining crimes/felonies
constrains the

_______________

41 Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993, 228 SCRA 214.
42 Garcia v. Court of Appeals, 334 Phil. 621, 634; 266 SCRA 678 (1997); People
v. Navarro, 75 Phil. 516, 518 (1945).
43 Section 3(a), Rule 117 of the 2000 Rules of Criminal Procedure.
44 United States v. Wiltberger, 18 U.S. 76 (1820).

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Court to refrain from a broad interpretation of penal laws where a

“narrow interpretation” is appropriate. The Court must take heed to
language, legislative history and purpose, in order to strictly 45
determine the wrath and breath of the conduct the law forbids.
However, when the congressional purpose is unclear, the court must
apply the rule of lenity, that is, ambiguity concerning 46
the ambit of
criminal statutes should be resolved in favor of lenity.
Penal statutes may not be enlarged by implication or intent
beyond the fair meaning of the language used; and may not be held
to include offenses other than those which are clearly described,
notwithstanding that the Court may47
think that Congress should have
made them more comprehensive. Words and phrases in a statute are
to be construed according to their common meaning and accepted
usage.
As Chief Justice John Marshall declared, “it would be dangerous,
indeed, to carry the principle that a case which is within the reason
or mischief of a statute is within its provision, so far as to punish a
crime not enumerated in the statute because it is of equal atrocity,
48
or
of kindred character with those which are enumerated. When
interpreting a criminal statute that does not explicitly reach the
conduct in question, the Court should not base an expansive 49
reading
on inferences from subjective and variable understanding.
Article 308 of the Revised Penal Code defines theft as follows:

Art. 308. Who are liable for theft.—Theft is committed by any person who,
with intent to gain but without violence, against or intimidation of persons
nor force upon things, shall take personal property of another without the
latter’s consent.

_______________

45 Dowling v. United States, 473 U.S. 207 (1985).

46 Liparota v. United States, 105 S. Ct. 2084 (1985).
47 Kelley v. State, 119 N.E.2d 322 (1954); State v. McGraw, 480 N.E.2d 552
(1985).
48 United States v. Wiltberger, supra note 44.
49 Dowling v. United States, supra note 45.

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268 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

The provision was taken from Article 530 of the Spanish Penal Code
which reads:

1. Los que con ánimo de lucrarse, y sin violencia o intimidación en las

personas ni fuerza en50 las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueño.

For one to be guilty of theft, the accused must have an intent to steal
(animus furandi) personal property, meaning the intent to deprive
another of his ownership/lawful possession of personal property
which intent is apart from and concurrently with the general criminal
intent which is an essential element of a felony of dolo (dolus
malus).
An information or complaint for simple theft must allege the
following elements: (a) the taking of personal property; (b) the said
property belongs to another; (c) the taking be done with intent to
gain; and (d) the taking be accomplished without 51
the use of violence
or intimidation of person/s or force upon things.
One is apt to conclude that “personal property” standing alone,
covers both tangible and intangible properties and are subject of
theft under the Revised Penal Code. But the words “Personal
property” under the Revised Penal Code must be considered in
tandem with the word “take” in the law. The statutory definition of
“taking” and movable property indi-

_______________

50 Viada, CODIGO PENAL REFORMADO DE 1870, CONCORDADO Y

COMENTADO, 219.

The felony has the following elements:

(1) Apoderamiento de una cosa mueble; (2) Que la cosa mueble sea ajena; (3) Que el
apoderamiento se verifique con intención de lucro; (4) Que se tome la cosa sin la voluntad de
su dueño; (5) Que se realice el apoderamiento de la cosa sin violencia intimidación en las
personas ni fuerza en las cosas (Viada, 220-221).

51 People v. Sison, 379 Phil. 363, 384; 322 SCRA 345 (2000); People v. Bustinera,
G.R. No. 148233, June 8, 2004, 431 SCRA 284, 291.

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cates that, clearly, not all personal properties may be the proper
subjects of theft. The general rule is that, only movable properties
which have physical or material existence and 52
susceptible of
occupation by another are proper objects of theft. As explained by
Cuelo Callon: “Cosa juridicamente es toda sustancia corporal,
material, susceptible
53
de ser aprehendida que tenga un valor
cualquiera.”
According to Cuello Callon, in the context of the Penal Code,
only those movable properties which can be taken and carried from
the place they are found are proper subjects of theft. Intangible
properties such as rights and ideas are not subject of theft because
the same cannot be “taken” from the place it is found and is
occupied or appropriated.

“Solamente las cosas muebles y corporales pueden ser objeto de hurto. La

sustracción de cosas inmuebles y la cosas incorporales (v. gr., los derechos,
las ideas) no puede integrar este delito, pues no es posible asirlas, tomarlas,
para conseguir su apropiación. El Codigo emplea la expresión “cosas
mueble” en el sentido de cosa que es susceptible de ser llevada del lugar
donde se encuentra, como dinero, joyas, ropas, etcétera, asi que su concepto
no coincide
54
por completo con el formulado por el Codigo civil (arts. 335 y
336).”

Thus, movable properties under Article 308 of the Revised Penal

Code should be distinguished from the rights or interests to which
they relate. A naked right existing merely in contemplation of law,
although it may be very valuable to the person who 55
is entitled to
exercise it, is not the subject of theft or larceny. Such rights or
interests are intangible and cannot be “taken” by another. Thus, right
to produce oil, good will or an interest in business, or the right to
engage in business, credit or franchise are properties. So is the credit
line represented by a credit card. However, they are not proper
subjects

_______________

52 Cuello Callon, Derecho Penal, Tomo II, p. 724.

53 Id.
54 See note 52, p. 725 (Italics supplied).
55 36 C.J.S. 737.

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270 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

of theft or larceny because they are without form or substance, the

mere “breath” of the Congress. On the other hand, goods, wares and
merchandise of businessmen and credit cards issued to them are
movable properties with physical and material existence and may be
taken by another; hence, proper subjects of theft.
There is “taking” of personal property, and theft is consummated
when the offender unlawfully acquires possession of personal
property even if for a short time; or if such property is under the
dominion and control of the thief. The taker, at some particular
amount, must have obtained complete and absolute possession and
control of the property adverse
56
to the rights of the owner or the
lawful possessor thereof. It is not necessary that the property be
actually carried away out of the physical possession of the 57
lawful
possessor or that he should have made his escape with it. Neither
asportation nor actual manual possession of property is required.
58
Constructive possession of the thief of the property is enough.
The essence of the element is the taking of a thing out of the
possession of the owner
59
without his privity and consent and without
animus revertendi.
Taking may be by the offender’s own hands, by his use of
innocent persons without any felonious intent, as well as any
mechanical device, such as an access device or card, or any agency,
animate or inanimate, with intent to gain. Intent to gain includes the
unlawful taking of personal property for the 60
purpose of deriving
utility, satisfaction, enjoyment and pleasure.

_______________

56 People v. Ashworth, 222 N.Y.S. 24 (1927).

57 People v. Salvilla, G.R. No. 86163, April 26, 1990, 184 SCRA 671, 677 (1990).
58 Harris v. State, 14 S.W. 390 (1890).
59 Woods v. People, 78 N.E. 607 (1906).
60 Villacorta v. Insurance Commission, G.R. No. 54171, October 28, 1980, 100
SCRA 467.

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We agree with the contention of the respondents that intangible

properties such as electrical energy and gas are proper subjects of
theft. The reason 61for this is that, as explained by this Court
62
in United
States v. Carlos and United States v. Tambunting, based on
decisions of the Supreme Court of Spain and of the courts in
England and the United States of America, gas or electricity are
capable of appropriation by another other than the owner. Gas and
electrical energy may 63
be taken, carried away and appropriated. In
People v. Menagas, the Illinois State Supreme Court declared that
electricity, like gas, may be seen and felt. Electricity, the same as
gas, is a valuable article of merchandise, bought and sold like other
personal property and is capable of appropriation by another. It is a
valuable article of merchandise, bought and sold like other personal
property, susceptible of being severed from a mass or larger quantity
and of being transported from place to place. Electrical energy may,
likewise, be taken and carried away. It is a valuable commodity,
bought and sold like other personal property. It may be transported
from place to place. There is nothing in the nature of gas used for
illuminating purposes which renders it incapable of being
feloniously taken and carried away. 64
In People ex rel Brush Electric Illuminating Co. v. Wemple, the
Court of Appeals of New York held that electric energy is
manufactured and sold in determinate quantities at a fixed price,
precisely as are coal, kerosene oil, and gas. It may be conveyed to
the premises of the consumer, stored in cells of different capacity
known as an accumulator; or it may be sent through a wire, just as
gas or oil may be transported either in a close tank or forced through
a pipe. Having reached the premises of the consumer, it may be used
in any way he may desire, being, like illuminating gas, capable of
_______________

61 Supra note 28.

62 41 Phil. 364 (1921).
63 11 N.E.2d 403 (1937).
64 29 N.E. 808 (1892) (Emphasis supplied).

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272 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

being transformed either into heat, 65light, or power, at the option of

the purchaser. In Woods v. People, the Supreme Court of Illinois
declared that there is nothing in the nature of gas used for
illuminating purposes which renders it incapable of being
feloniously taken and carried away. It is a valuable article of
merchandise, bought and sold like other personal property,
susceptible of being severed from a mass or larger quantity and of
being transported from place to place.
Gas and electrical energy should not be equated with business or
services provided by business entrepreneurs to the public. Business
does not have an exact definition. Business is referred as that which
occupies the time, attention and labor of men for the purpose of
livelihood or 66profit. It embraces everything that which a person can
be employed. Business may also mean employment, occupation or
profession. Business is also67 defined as a commercial activity for
gain benefit or advantage. Business, like services in business,
although are properties, are not proper subjects of theft under the
Revised Penal Code because the same cannot be “taken” or
“occupied.” If it were otherwise, as claimed by the respondents,
there would be no juridical difference between the taking of the
business of a person or the services provided by him for gain, vis-à-
vis, the taking of goods, 68
wares or merchandise, or equipment
comprising his business. If it was its intention to include “business”
as personal property under Article 308 of the Revised Penal Code,
the Philippine Legislature should have spoken in language that is
clear and definite: that business 69
is personal property under Article
308 of the Revised Penal Code.

_______________

65 Supra note 59 (Emphasis supplied).

66 Doggett v. Burnet, 65 F.2d 191 (1933).
67 Black’s Law Dictionary, 5th ed., p. 179; Union League Club v. Johnson, 108
P.2d 487, 490 (1940).
68 United States v. McCraken, 19 C.M.R. 876 (1955).
69 People v. Tansey, 593 N.Y.S. 2d 426 (1992).
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We agree with the contention of the petitioner that, as gleaned from

the material averments of the Amended Information, he is charged
of “stealing the international long distance calls belonging to PLDT”
and the use thereof, through the ISR. Contrary to the claims of the
OSG and respondent PLDT, the petitioner is not charged of stealing
P20,370,651.95 from said respondent. Said amount of
P20,370,651.95 alleged in the Amended Information is the
aggregate amount of access, transmission or termination charges
which the PLDT expected from the international long distance calls
of the callers with the use of Baynet Super Orient Cards sold by
Baynet Co. Ltd.
In defining theft, under Article 308 of the Revised Penal Code, as
the taking of personal property without the consent of the owner
thereof, the Philippine legislature could not have contemplated the
human voice which is converted into electronic impulses or
electrical current which are transmitted to the party called through
the PSTN of respondent PLDT and the ISR of Baynet Card Ltd.
within its coverage. When the Revised Penal Code was approved, on
December 8, 1930, international telephone calls and the transmission
and routing of electronic voice signals or impulses emanating from
said calls, through the PSTN, IPL and ISR, were still nonexistent.
Case law is that, where a legislative history fails to evidence
congressional awareness of the scope of the statute claimed by the
respondents, a narrow interpretation of the law is more consistent
with the usual approach to the construction of the statute. Penal
responsibility cannot
70
be extended beyond the fair scope of the
statutory mandate.
Respondent PLDT does not acquire possession, much less,
ownership of the voices of the telephone callers or of the electronic
voice signals or current emanating from said calls. The human voice
and the electronic voice signals or current caused thereby are
intangible and not susceptible of posses-

_______________

70 People v. Case, 42 N.Y.S. 2d 101.

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274 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar
sion, occupation or appropriation by the respondent PLDT or even
the petitioner, for that matter. PLDT merely transmits the electronic
voice signals through its facilities and equipment. Baynet Card Ltd.,
through its operator, merely intercepts, reroutes the calls and passes
them to its toll center. Indeed, the parties called receive the
telephone calls from Japan.
In this modern age of technology, telecommunications systems
have become so tightly merged with computer systems that it is
difficult to know where one starts and the other finishes. The
telephone set is highly computerized 71
and allows computers to
communicate across long distances. The instrumentality at issue in
this case is not merely a telephone but a telephone inexplicably
linked to a computerized communications system with the use of
Baynet Cards sold by the Baynet Card Ltd. The corporation 72
uses
computers, modems and software, among others, for its ISR.
The conduct complained of by respondent PLDT is reminiscent
of “phreaking” (a slang term for the action of making a telephone
system to do something that it normally should not allow by
“making the phone company bend over and grab its ankles”). A
“phreaker” is one who engages in the act of73 manipulating phones
and illegally markets telephone services. Unless the phone
company replaces all its hardware, phreaking would be impossible
to stop. The phone companies in North America were impelled to
replace all their hardware and adopted full digital switching system
known as the Common Channel Inter Office Signaling. Phreaking
occurred only during the 1960’s and 1970’s, decades after the
Revised Penal Code took effect.
The petitioner is not charged, under the Amended Information,
for theft of telecommunication or telephone services

_______________

71 Commonwealth v. Gerulis, 616 A.2d 686 (1992).

72 Rollo, p. 138.
73 Commonwealth v. Gerulis, supra note 71.

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Laurel vs. Abrogar

offered by PLDT. Even if he is, the term “personal property” under

Article 308 of the Revised Penal Code cannot be interpreted beyond
its seams so as to include “telecommunication or telephone services”
or computer services for that matter. The word “service” has a
variety of meanings dependent upon the context, or the sense in
which it is used; and, in some instances, it may include a sale. For
instance, the sale of food by restaurants is usually referred to as
74
 74
“service,” although an actual sale is involved. It may also mean the
duty or labor to be rendered by one75person to another; performance
of labor for the benefit of another. In the case of PLDT, it is to
render local and international telecommunications services and such
other services as authorized by the CPCA issued by the NTC. Even
at common law, 76neither time nor services may be taken and occupied
or appropriated. A service is generally not considered property and
a theft of service would not, therefore,
77
constitute theft since there
can be no caption or asportation. Neither is the unauthorized use of
the equipment and facilities of PLDT by the petitioner 78
theft under
the aforequoted provision of the Revised Penal Code.
If it was the intent of the Philippine Legislature, in 1930, to
include services to be the subject of theft, it should have
incorporated the same in Article 308 of the Revised Penal Code. The
Legislature did not. In fact, the Revised Penal Code does not even
contain a definition of services.
If taking of telecommunication services or the business79
of a
person, is to be proscribed, it must be by special statute or

_______________

74 Central Power and Light Co. v. State, 165 S.W. 2d 920 (1942).
75 Black’s Law Dictionary, p. 1227.
76 Lund v. Commonwealth, 232 S.E.2d 745 (1977); 50 Am. Jur. 2d Larceny, p. 83.
77 Imbau, Thomson, Moenssens, Criminal Law, Second Edition, p. 6247, 2
Wharton Criminal Law, Prodded, § 604:369.
78 Id., at p. 746; Commonwealth v. Rivera, 583 N.E.2d 867 (1991).
79 People v. Tansey, supra note 69.

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276 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

an amendment of the Revised Penal Code. Several states in the

United States, such as New York, New Jersey, California and
Virginia, realized that their criminal statutes did not contain any
provisions penalizing the theft of services and passed laws defining
and penalizing theft of telephone and computer services. The
Pennsylvania Criminal Statute now penalizes theft of services, thus:

(a) Acquisition of services.—

(1) A person is guilty of theft if he intentionally obtains services for
himself or for another which he knows are available only for compensation,
by deception or threat, by altering or tampering with the public utility meter
or measuring device by which such services are delivered or by causing or
permitting such altering or tampering, by making or maintaining any
unauthorized connection, whether physically, electrically or inductively, to a
distribution or transmission line, by attaching or maintaining the attachment
of any unauthorized device to any cable, wire or other component of an
electric, telephone or cable television system or to a television receiving set
connected to a cable television system, by making or maintaining any
unauthorized modification or alteration to any device installed by a cable
television system, or by false token or other trick or artifice to avoid
payment for the service.

In the State of Illinois in the United States of America, theft of labor

or services or use of property is penalized:

(a) A person commits theft when he obtains the temporary use of property,
labor or services of another which are available only for hire, by means of
threat or deception or knowing that such use is without the consent of the
person providing the property, labor or services.

In 1980, the drafters of the Model Penal Code in the United States of
America arrived at the conclusion that labor and services, including
professional services, have not been included within the traditional
scope of the term “property” in ordinary theft statutes. Hence, they
decided to incorporate in the Code Section 223.7, which defines and
penalizes theft of services, thus:

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(1) A person is guilty of theft if he purposely obtains services which he

knows are available only for compensation, by deception or threat, or by
false token or other means to avoid payment for the service. “Services”
include labor, professional service, transportation, telephone or other public
service, accommodation in hotels, restaurants or elsewhere, admission to
exhibitions, use of vehicles or other movable property. Where compensation
for service is ordinarily paid immediately upon the rendering of such
service, as in the case of hotels and restaurants, refusal to pay or absconding
without payment or offer to pay gives rise to a presumption that the service
was obtained by deception as to intention to pay; (2) A person commits theft
if, having control over the disposition of services of others, to which he is
not entitled, he knowingly diverts such services to his own benefit or to the
benefit of another not entitled thereto.

Interestingly, after the State Supreme Court

80
of Virginia promulgated
its decision in Lund v. Commonwealth, declaring that neither time
nor services may be taken and carried away and are not proper
subjects of larceny, the General Assembly of Virginia enacted Code
No. 18-2-98 which reads:
Computer time or services or data processing services or information or data
stored in connection therewith is hereby defined to be property which may
be the subject of larceny under § § 18.2-95 or 18.2-96, or embezzlement
under § 18.2-111, or false pretenses under § 18.2-178.

In the State of Alabama, Section 13A-8-10(a)(1) of the Penal Code

of Alabama of 1975 penalizes theft of services: “A person commits
the crime of theft of services if: (a) He intentionally obtains services
known by him to be available only for compensation by deception,
threat, false token or other means to avoid payment for the services .
. .”
In the Philippines, Congress has not amended the Revised Penal
Code to include theft of services or theft of business as

_______________

80 See note 76.

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278 SUPREME COURT REPORTS ANNOTATED

Laurel vs. Abrogar

felonies. Instead, it approved a law, Republic Act No. 8484,

otherwise known as the Access Devices Regulation Act of 1998, on
February 11, 1998. Under the law, an access device means any card,
plate, code, account number, electronic serial number, personal
identification number and other telecommunication services,
equipment or instrumentalities-identifier or other means of account
access that can be used to obtain money, goods, services or any other
thing of value or to initiate a transfer of funds other than a transfer
originated solely by paper instrument. Among the prohibited acts
enumerated in Section 9 of the law are the acts of obtaining money
or anything of value through the use of an access device, with intent
to defraud or intent to gain and fleeing thereafter; and of effecting
transactions with one or more access devices issued to another
person or persons to receive payment or any other thing of value.
Under Section 11 of the law, conspiracy to commit access devices
fraud is a crime. However, the petitioner is not charged of violation
of R.A. 8484.
Significantly, a prosecution under the law shall be without
prejudice to any liability for violation of any provisions of the
Revised Penal Code inclusive of theft under Rule 308 of the Revised
Penal Code and estafa under Article 315 of the Revised Penal Code.
Thus, if an individual steals a credit card and uses the same to obtain
services, he is liable of the following: theft of the credit card under
Article 308 of the Revised Penal Code; violation of Republic Act
No. 8484; and estafa under Article 315(2)(a) of the Revised Penal
Code with the service provider as the private complainant. The
petitioner is not charged of estafa before the RTC in the Amended
Information.
Section 33 of Republic Act No. 8792, Electronic Commerce Act
of 2000 provides:

Sec. 33. Penalties.—The following Acts shall be penalized by fine and/or

imprisonment, as follows:
a) Hacking or cracking which refers to unauthorized access into or
interference in a computer system/server or information and

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Laurel vs. Abrogar

communication system; or any access in order to corrupt, alter, steal, or

destroy using a computer or other similar information and communication
devices, without the knowledge and consent of the owner of the computer or
information and communications system, including the introduction of
computer viruses and the like, resulting on the corruption, destruction,
alteration, theft or loss of electronic data messages or electronic documents
shall be punished by a minimum fine of One hundred thousand pesos
(P100,000.00) and a maximum commensurate to the damage incurred and a
mandatory imprisonment of six (6) months to three (3) years.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED.

The assailed Orders of the Regional Trial Court and the Decision of
the Court of Appeals are REVERSED and SET ASIDE. The
Regional Trial Court is directed to issue an order granting the
motion of the petitioner to quash the Amended Information.
SO ORDERED.

Ynares-Santiago and Austria-Martinez, JJ., concur.

Panganiban (C.J., Chairperson), No part. Former counsel of
a party.
Chico-Nazario, J., On Leave.

Petition granted, orders reversed and set aside.

Note.—The elements of theft are: (1) personal property of

another person must be taken without the latter’s consent; (2) the act
of taking the personal property of another must be done without the
use of violence against or intimidation of persons nor force upon
things, and (3) there must be an intention to gain from the taking of
another person’s personal property. (Lucas vs. Court of Appeals, 389
SCRA 749 [2002])

——o0o——
 280

280 SUPREME COURT REPORTS ANNOTATED

Rivera vs. David

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