Professional Documents
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Laurel Vs Abrogar
Laurel Vs Abrogar
Criminal Law; Theft; Elements of theft.—The elements of theft under Article 308
of the Revised Penal Code are as follows: (1) that there be taking of personal
property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5)
that the taking be accomplished without the use of violence against or intimidation
of persons or force upon things.
Same; Same; Property; The only requirement for a personal property to be the
object of theft under the Penal Code is that it be capable of appropriation.—The only
requirement for a personal property to be the object of theft under the penal code is
that it be capable of appropriation. It need not be capable of “asportation,” which is
defined as “carrying away.” Jurisprudence is settled that to “take” under the theft
provision of the penal code does not require asportation or carrying away. To
appropriate means to deprive the lawful owner of the thing. The word “take” in the
Revised Penal Code in-
_______________
** Per Special Order No. 545, dated December 16, 2008, signed by Chief Justice Reynato S. Puno,
designating Associate Justice Minita V. Chico-Nazario to replace Associate Justice Renato C. Corona,
who is on leave.
* EN BANC.
42cludes any act intended to transfer possession which, as held in the assailed
Decision, may be committed through the use of the offenders’ own hands, as well
as any mechanical device, such as an access device or card as in the instant case.
This includes controlling the destination of the property stolen to deprive the owner
of the property, such as the use of a meter tampering, as held in Natividad v. Court
of Appeals, 1 SCRA 380 (1961), use of a device to fraudulently obtain gas, as held
in United States v. Tambunting, and the use of a jumper to divert electricity, as held
in the cases of United States v. Genato, United States v. Carlos, and United States
v. Menagas, 11 N.E. 2d 403 (1937).
Same; Same; The act of conducting International Simple Resale (ISR)
operations by illegally connecting various equipment or apparatus to private
respondent Philippine Long Distance Telephone’s (PLDT’s) telephone system,
through which petitioner is able to resell or re-route international long distance calls
using respondent Philippine Long Distance Telephone’s (PLDT’s) facilities
constitutes all three acts of subtraction mentioned above.—The acts of
“subtraction” include: (a) tampering with any wire, meter, or other apparatus
installed or used for generating, containing, conducting, or measuring electricity,
telegraph or telephone service; (b) tapping or otherwise wrongfully deflecting or
taking any electric current from such wire, meter, or other apparatus; and (c) using
or enjoying the benefits of any device by means of which one may fraudulently
obtain any current of electricity or any telegraph or telephone service. In the instant
case, the act of conducting ISR operations by illegally connecting various equipment
or apparatus to private respondent PLDT’s telephone system, through which
petitioner is able to resell or re-route international long distance calls using
respondent PLDT’s facilities constitutes all three acts of subtraction mentioned
above.
Same; Same; Telecommunication Industry; Property; The business of providing
telecommunication or telephone service is likewise personal property which can be
the object of theft under Article 308 of the Revised Penal Code.—The business of
providing telecommunication or telephone service is likewise personal property
which can be the object of theft under Article 308 of the Revised Penal Code.
Business may be appropriated under Section 2 of Act No. 3952 (Bulk Sales Law),
hence, could be object of theft.
Civil Law; Property; Interest in business was declared to be personal property
since it is capable of appropriation and not included in the enumeration of real
properties.—Interest in business was not specifically enumerated as personal
property in the Civil Code in force at the time the above decision was rendered. Yet,
interest in business was declared to be personal property 43since it is capable of
appropriation and not included in the enumeration of real properties. Article 414 of
the Civil Code provides that all things which are or may be the object of
appropriation are considered either real property or personal property. Business is
likewise not enumerated as personal property under the Civil Code. Just like interest
in business, however, it may be appropriated. Following the ruling in Strochecker v.
Ramirez, 44 Phil. 933 (1922), business should also be classified as personal
property. Since it is not included in the exclusive enumeration of real properties
under Article 415, it is therefore personal property.
Same; Same; Electricity; Electricity is personal property under Article 416(3) of
the Civil Code, which enumerates “forces of nature which are brought under control
by science.”—It was conceded that in making the international phone calls, the
human voice is converted into electrical impulses or electric current which are
transmitted to the party called. A telephone call, therefore, is electrical energy. It
was also held in the assailed Decision that intangible property such as electrical
energy is capable of appropriation because it may be taken and carried away.
Electricity is personal property under Article 416 (3) of the Civil Code, which
enumerates “forces of nature which are brought under control by science.”
Same; Same; Telecommunication Industry; It is the use of these
telecommunications facilities without the consent of Philippine Long Distance
Telephone (PLDT) that constitutes the crime of theft, which is the unlawful taking of
the telephone services and business.—While it may be conceded that “international
long distance calls,” the matter alleged to be stolen in the instant case, take the
form of electrical energy, it cannot be said that such international long distance
calls were personal properties belonging to PLDT since the latter could not have
acquired ownership over such calls. PLDT merely encodes, augments, enhances,
decodes and transmits said calls using its complex communications infrastructure
and facilities. PLDT not being the owner of said telephone calls, then it could not
validly claim that such telephone calls were taken without its consent. It is the use
of these communications facilities without the consent of PLDT that constitutes the
crime of theft, which is the unlawful taking of the telephone services and business.
Same; Same; Same; The business of providing telecommunication and the
telephone service are personal property under Article 308 of the Revised Penal
Code (RPC), and the act of engaging in International Simple Resale (ISR) is an act of
“subtraction” penalized under said article.—The business of providing
telecommunication and the telephone service are personal property under Article
308 of the Revised Penal Code, and the act of engaging in ISR 44is an act of
“subtraction” penalized under said article. However, the Amended Information
describes the thing taken as, “international long distance calls,” and only later
mentions “stealing the business from PLDT” as the manner by which the gain was
derived by the accused. In order to correct this inaccuracy of description, this case
must be remanded to the trial court and the prosecution directed to amend the
Amended Information, to clearly state that the property subject of the theft are the
services and business of respondent PLDT. Parenthetically, this amendment is not
necessitated by a mistake in charging the proper offense, which would have called
for the dismissal of the information under Rule 110, Section 14 and Rule 119,
Section 19 of the Revised Rules on Criminal Procedure. To be sure, the crime is
properly designated as one of theft. The purpose of the amendment is simply to
ensure that the accused is fully and sufficiently apprised of the nature and cause of
the charge against him, and thus guaranteed of his rights under the Constitution.
CORONA, J., Separate Opinion:
Civil Law; Property; Telecommunication Industry; While telephone calls take the
form of electrical energy, it cannot be said that such telephone calls were personal
properties belonging to Philippine Long Distance Telephone (PLDT) since the latter
could not have acquired ownership over such calls.—The question of whether
PLDT creates the phone calls or merely encodes and transmits them is a
question of fact that can be answered by science. I agree with Justice Consuelo
Ynares-Santiago that, while telephone calls “take the form of electrical energy, it
cannot be said that such [telephone] calls were personal properties belonging to
PLDT since the latter could not have acquired ownership over such calls. PLDT
merely encodes, augments, enhances, decodes and transmits said calls using its
complex infrastructure and facilites.”
TINGA, J., Concurring Opinion:
Civil Law; Telecommunication Industry; Criminal Law; Theft; The coursing of
long distance calls through International Simple Resale (ISR) is not per se illegal.—
The coursing of long distance calls through ISR is not per se illegal. For example,
the Federal Communications Commission of the United States is authorized by
statute to approve long-distance calling through ISR for calls made to certain
countries, as it has done so with nations such as Australia, France and Japan.
However, as indicated by the Office of 45the Solicitor General’s support for the
subject prosecution, there was no authority yet for the practice during the time of
the subject incidents.
Criminal Law; Theft; The crime of theft is penalized under Article 308 of the
Revised Penal Code (RPC).—The crime of theft is penalized under Article 308 of the
RPC. From that provision, we have long recognized the following as the elements of
theft: (1) that there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished without
the use of violence against or intimidation of persons or force upon things.
Electricity; While electricity is merely the medium through which the telephone
calls are carried, it is sufficiently analogous to allow the courts to consider such
calls as possessing similar physical characteristics as electricity.—Are “international
long distance calls” personal property? The assailed Decision did not believe so, but
I agree with the present Resolution that they are. The Court now equates telephone
calls to electrical energy. To be clear, telephone calls are not exactly alike as pure
electricity. They are sound waves (created by the human voice) which are carried
by electrical currents to the recipient on the other line. While electricity is merely
the medium through which the telephone calls are carried, it is sufficiently
analogous to allow the courts to consider such calls as possessing similar physical
characteristics as electricity.
Same; Property; Telecommunication Industry; Theft; Since physically a
telephone call is in the form of an electric signal, our jurisprudence acknowledging
that electricity is personal property which may be stolen through theft is applicable.
—The assailed Decision conceded that when a telephone call was made, “the
human voice [is] converted into electronic impulses or electrical current.” As the
Resolution now correctly points out, electricity or electronic energy may be the
subject of theft, as it is personal property capable of appropriation. Since physically
a telephone call is in the form of an electric signal, our jurisprudence acknowledging
that electricity is personal property which may be stolen through theft is applicable.
Same; Same; Same; Same; Just because the phone calls are transmitted using
the facilities and services of Philippine Long Distance Telephone (PLDT), it does not
follow that PLDT is the owner of such calls.—The legal paradigm that treats PLDT as
akin to a common carrier should alert against any notion that it is the owner of the
“long distance overseas calls” alleged as having been stolen in the Amended
Information. More precisely, it merely46transmits these calls, owned by another, to
the intended recipient. Applying the common carrier paradigm, when a public
transport system is contracted to transport goods or persons to a destination, the
transport company does not acquire ownership over such goods or such persons,
even though it is in custody of the same for the duration of the trip. Just because
the phone calls are transmitted using the facilities and services of PLDT, it does not
follow that PLDT is the owner of such calls.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
Salonga, Hernandez & Mendoza for petitioner.
Angara, Abello, Concepcion, Regala and Cruz and Kapunan, Tamano,
Villodolid & Associates for respondent PLDT.
R E S O L U T I O N
YNARES-SANTIAGO, J.:
On February 27, 2006, this Court’s First Division rendered judgment in this
case as follows:
“IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
Orders of the Regional Trial Court and the Decision of the Court of Appeals
are REVERSED and SET ASIDE. The Regional Trial Court is directed to issue an
order granting the motion of the petitioner to quash the Amended Information.
SO ORDERED.” 1
1 Rollo, p. 728.
47and 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, antenae, and/or
air wave frequency which connect directly to the local or domestic exchange
facilities of the country where the call is destined, effectively stealing this business
from PLDT while using its facilities in the estimated amount of P20,370,651.92 to
the damage and prejudice of PLDT, in the said amount.
CONTRARY TO LAW.” 2
13 II Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines 26 (1992 ed.).
14 Rollo, p. 902.
15 Id., at pp. 781-783; 832-837; 872, 874-877.
56impulses back to human voice/voice signal before the called party receives the
same. In other words, a telecommunication company both converts/reconverts the
human voice/voice signal and provides the medium for transmitting the same.
39. Moreover, in the case of an international telephone call, once the electronic
impulses originating from a foreign telecommunication company country (i.e. Japan)
reaches the Philippines through a local telecommunication company (i.e. private
respondent PLDT), it is the latter which decodes, augments and enhances the
electronic impulses back to the human voice/voice signal and provides the medium
(i.e. electric current) to enable the called party to receive the call. Thus, it is not
true that the foreign telecommunication company provides (1) the electric current
which transmits the human voice/voice signal of the caller and (2) the electric
current for the called party to receive said human voice/voice signal.
40. Thus, contrary to petitioner Laurel’s assertion, once the electronic impulses
or electric current originating from a foreign telecommunication company
(i.e. Japan) reaches private respondent PLDT’s network, it is private respondent
PLDT which decodes, augments and enhances the electronic impulses back to the
human voice/voice signal and provides the medium (i.e. electric current) to enable
the called party to receive the call. Without private respondent PLDT’s network, the
human voice/voice signal of the calling party will never reach the called party.”
16
CONCURRING OPINION
TINGA, J.:
I do not have any substantive disagreements with the ponencia. I write
separately to flesh out one of the key issues behind the Court’s present
disposition—whether the Philippine Long Distance Company (PLDT) can
validly claim ownership over the telephone calls made using its telephone
services. As the subject Amended Information had alleged that petitioners
had “unlawfully and feloniously take, steal and use the international long
distance calls belonging to PLDT,” said information could have been
sustained only if its premise were accepted that PLDT indeed owned those
phone calls.
I.
It is best to begin with an overview of the facts that precede this case.
Among many other services, PLDT operates an International Gateway Facility
(IGF),1 through which pass phone calls originating from overseas to local
PLDT phones. However, there exists a method of routing and completing
international long distance calls called International Simple Resale (ISR),
which makes use of International Private Leased Lines (IPL). Because IPL
lines may be linked to switching equipment connected to a PLDT phone line,
it becomes
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2 Supra note 1 at p. 251.
3 Id., at p. 255.
4 Id., at p. 252.
5 See International Bureau International Simple Resale, http://www.fcc.gov/ib/pd/pf/isr.html
(Last visited, 6 September 2007).
6 Supra note 1, at p. 253.
61lines.7 However, when the Information was filed against petitioner with the
Regional Trial Court (RTC) of Makati on 8 February 2000, the Information
charged petitioner only with theft under Article 308 of the RPC. The
accusatory portion of the Amended Information reads as follows:
“On or about September 10-19, 1999, or prior thereto, in Makati City, and within
the jurisdiction of this Honorable Court, the accused, conspiring and confederating
together and all of them mutually helping and aiding one another, with intent to
gain and without the knowledge and consent of the Philippine Long Distance
Telephone (PLDT), did then and there willfully, unlawfully and feloniously take, steal
and use the international long distance calls belonging to PLDT by conducting
International Simple Resale (ISR), which is a method of routing and completing
international long distance calls using lines, cables, antennae, and/or air wave
frequency which connect directly to the local or domestic exchange facilities of the
country where the call is destined, effectively stealing this business from PLDT while
using its facilities in the estimated amount of P20,370,651.92 to the damage and
prejudice of PLDT, in the said amount.” 8
II.
7 Id., at p. 254.
8 Id., at p. 255. Emphasis not mine.
62sailed pointed out that petitioner could have been charged instead with
estafa under the RPC, or with violation of the Access Devices Regulation Act
of 1998.9 Moreover, it appears that PLDT’s original complaint was for
“network fraud,” and that the State Prosecutor had initially recommended
prosecution as well under P.D. 401, a law specifically designed against
tampering with the phone service operations of PLDT. Facially, it would
appear that prosecution of petitioner under any of these other laws would
have been eminently more appropriate than the present recourse, which
utilizes the same provision used to penalize pickpockets.
But since the State has preferred to pursue this more cumbersome theory
of the case, we are now belabored to analyze whether the facts
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9 “In the Philippines, Congress has not amended the Revised Penal Code to include theft of
services or theft of business as felonies. Instead, it approved a law, Republic Act No. 8484,
otherwise known as the Access Devices Regulation Act of 1998, on February 11, 1998. Under the
law, an access device means any card, plate, code, account number, electronic serial number,
personal identification number and other telecommunication services, equipment or
instrumentalities-identifier or other means of account access that can be used to obtain money,
goods, services or any other thing of value or to initiate a transfer of funds other than a transfer
originated solely by paper instrument. Among the prohibited acts enumerated in Section 9 of the
law are the acts of obtaining money or anything of value through the use of an access device,
with intent to defraud or intent to gain and fleeing thereafter; and of effecting transactions with
one or more access devices issued to another person or persons to receive payment or any other
thing of value. Under Section 11 of the law, conspiracy to commit access devices fraud is a crime.
However, the petitioner is not charged of violation of R.A. 8484.
Significantly, a prosecution under the law shall be without prejudice to any liability for
violation of any provisions of the Revised Penal Code inclusive of theft under Rule 308 of
the Revised Penal Code and estafa under Article 315 of the Revised Penal Code. Thus, if an
individual steals a credit card and uses the same to obtain services, he is liable of the following:
theft of the credit card under Article 308 of the Revised Penal Code; violation of Republic Act No.
8484; and estafa under Article 315(2)(a) of the Revised Penal Code with the service provider as
the private complainant. The petitioner is not charged of estafa before the RTC in the Amended
Information.” Laurel v. Abrogar, G.R. 155706, 27 February 2006, 483 SCRA 243.
63as alleged in the Amended Information could somehow align with the
statutory elements of theft under the RPC.
The crime of theft is penalized under Article 308 of the RPC. From that
provision, we have long recognized the following as the elements of theft: (1)
that there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking
be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons
or force upon things.10
In analyzing whether the crime of theft had been committed given the
allegations in this case, it is against these five elements that the facts must
be tested. We can agree outright that the “taking” alleged in this case was
accomplished without the use of violence against or intimidation of persons
or force upon things. It can also be conceded for now that the element
of animo lucrandi, or intent to gain, does not bear materiality to our present
discussion and its existence may be presumed for the moment.
Let us discuss the remaining elements of theft as they relate to the
Amended Information, and its contentious allegation that petitioner did
“unlawfully and feloniously take, steal and use the international long
distance calls belonging to PLDT.”
Are “international long distance calls” personal property? The assailed
Decision did not believe so, but I agree with the present Resolution that they
are. The Court now equates telephone calls to electrical energy. To be clear,
telephone calls are not exactly alike as pure electricity. They are sound
waves (created by the human voice) which are carried by electrical currents
to the recipient on the other line.11 While electricity is merely the medium
through which the telephone calls are carried, it is sufficiently analogous to
allow the courts to
_______________
10See e.g. People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291,
citing People v. Sison, 322 SCRA 345, 363-364 (2000).
11 “When a person speaks into a telephone, the sound waves created by his voice enter the
mouthpiece. An electric current carries the sound to the telephone of the person he is talking to.”
See How the Telephone Works, at http://areaonline.com/phone/telworks.html.
64consider such calls as possessing similar physical characteristics as
electricity.
The assailed Decision conceded that when a telephone call was made,
“the human voice [is] converted into electronic impulses or electrical
current.”12 As the Resolution now correctly points out, electricity or electronic
energy may be the subject of theft, as it is personal property capable of
appropriation. Since physically a telephone call is in the form of an electric
signal, our jurisprudence acknowledging that electricity is personal property
which may be stolen through theft is applicable.
III.
I now turn to the issue of the legal ownership of the “international long
distance calls,” or telephone calls in general for that matter. An examination
of the physical characteristics of telephone calls is useful for our purposes.
As earlier stated, telephone calls take on the form of electrical current,
though they are distinguished from ordinary electricity in that they are
augmented by the human voice which is transmitted from one phone to
another. A material inquiry is how these calls are generated in the first
place?
It bears significance that neither the RTC nor the Court of Appeals
concluded that PLDT owns the telephone calls. Instead, they concluded that
PLDT owns the telephone service, a position that is intellectually plausible,
unlike the contention that PLDT owns the actual calls themselves. Yet PLDT is
willing to make the highly controversial claim that it owns the phone calls,
despite the absence of any reliable or neutral evidence to that effect.
PLDT argues that it does not merely transmit the telephone calls but
“actually creates them.” The claim should beggar belief, if only for the
underlying implication that if PLDT “creates” telephone calls, such calls can
come into existence without the participation of a caller, or a human voice
for that matter.
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12 Id., at p. 273.
65
Let us examine the analysis of the American law professors Benjamin,
Lichtman and Shelanski in their textbook Telecommunications Law and
Policy. In illustrating the “telephone system vocabulary,” they offer the
following discussion:
“Consumers have in their homes standard equipment (like telephones) capable
of encoding and receiving voice communications. Businesses have similar basic
equipment. This equipment is what insiders call customer premises equipment,
which is abbreviated ‘CPE’. The Telecommunications Act of 1996 defines CPE as
‘equipment employed on the premises of a person (other than a carrier) to
originate, route or terminate telecommunications.’ 47 U.S.C. §153(14). This
category, as implemented by the FCC, includes not only basic telephones but also
answering machines, fax machines, modems, and even private branch exchange
(PBX) equipment (in which a large entity maintains, in effect, its own switch-board
to various internal extensions).” 13
It has been suggested that PLDT owns the phone calls because it is the
entity that encodes or decodes such calls even as they originate from a
human voice. Yet it is apparent from the above discussion that the device
that encodes or decodes telephone calls is the CPE, more particularly the
telephone receiver. It is the telephone receiver, which is in the possession of
the telephone user, which generates the telephone call at the initiative of the
user. Now it is known from experience that while PLDT does offer its
subscribers the use of telephone receivers marked with the PLDT logo,
subscribers are free to go to Abenson and purchase a telephone receiver
manufactured by an entity other than PLDT, such as Sony or Bell
Siemens or Panasonic. Since such is the case, it cannot be accurately said
that the encoding or decoding of Philippine telephone calls is done through
the exclusive use of PLDT equipment, because the telephone receivers we
use are invariably purchased directly by the very same people who call or
receive the phone calls.
It likewise appears from the particular facts of this case that some, if not
many of the phone calls alleged to have been stolen from PLDT were
generated by calls originating not from the Philippines, but from
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