NOTES

ON ARSON:

PRESIDENTIAL DECREE NO. 1613, March 7, 1979

Reason for the enactment:

There were findings of the police and intelligence agencies of the government reveal that fires and
other crimes involving destruction in Metro Manila and other urban centers in the country are
being perpetrated by criminal syndicates, some of which have foreign connections;
Apparently, the provisions of the Revised Penal Code on Arson (Articles 320-326) suffered from
certain inadequacies that impede the successful enforcement and prosecution of arsonists. Hence,
it was deemed imperative that the high incidence of fires and other crimes involving destruction
be prevented to protect the national economy and preserve the social, economic and political
stability of the country

Provisions of PD1613

Section 1. Arson. Any person who burns or sets fire to the property of another shall be punished
by Prision Mayor.

The same penalty shall be imposed when a person sets fire to his own property under
circumstances which expose to danger the life or property of another..

Section 2. Destructive Arson. The penalty of Reclusion Temporal in its maximum period to
Reclusion Perpetua shall be imposed if the property burned is any of the following:
1. Any ammunition factory and other establishment where explosives, inflammable or
combustible materials are stored.
2. Any archive, museum, whether public or private, or any edifice devoted to culture, education
or social services.
3. Any church or place of worship or other building where people usually assemble.
4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of
persons or property
5. Any building where evidence is kept for use in any legislative, judicial, administrative or other
official proceedings.
6. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or
private market, theater or movie house or any similar place or building.
7. Any building, whether used as a dwelling or not, situated in a populated or congested area.

Section 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be
imposed if the property burned is any of the following:
1. Any building used as offices of the government or any of its agencies;
2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel;
5. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest;

1
6. Any rice mill, sugar mill, cane mill or mill central; and
7. Any railway or bus station, airport, wharf or warehouse.

Section 4. Special Aggravating Circumstances in Arson. The penalty in any case of arson shall be
imposed in its maximum period;
1. If committed with intent to gain;
2. If committed for the benefit of another;
3. If the offender is motivated by spite or hatred towards the owner or occupant of the property
burned;
4. If committed by a syndicate.
The offense is committed by a syndicate if its is planned or carried out by a group of three (3) or
more persons.

Section 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death
results, the penalty of Reclusion Perpetua to death shall be imposed.

Section 6. Prima Facie evidence of Arson. Any of the following circumstances shall constitute prima
facie evidence of arson:
1. If the fire started simultaneously in more than one part of the building or establishment.
2. If substantial amount of flammable substances or materials are stored within the building note
necessary in the business of the offender nor for household us.
3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials
soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic
contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the
ruins or premises of the burned building or property.
4. If the building or property is insured for substantially more than its actual value at the time of
the issuance of the policy.
5. If during the lifetime of the corresponding fire insurance policy more than two fires have
occurred in the same or other premises owned or under the control of the offender and/or
insured.
6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or
property had been withdrawn from the premises except in the ordinary course of business.
7. If a demand for money or other valuable consideration was made before the fire in exchange
for the desistance of the offender or for the safety of the person or property of the victim.

Section 7. Conspiracy to commit Arson. Conspiracy to commit arson shall be punished by Prision
Mayor in its minimum period.

Section 8. Confiscation of Object of Arson. The building which is the object of arson including the
land on which it is situated shall be confiscated and escheated to the State, unless the owner
thereof can prove that he has no participation in nor knowledge of such arson despite the exercise
of due diligence on his part.

2
Section 9. Repealing Clause. The provisions of Articles 320 to 326-B of the Revised Penal Code and
all laws, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions
of this Decree are hereby repealed or amended accordingly.

Articles 320-326 of RPC

Chapter Eight
ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

Art. 320. Destructive arson. — The penalty of reclusion temporal in its maximum period to
reclusion perpetua shall be imposed upon any person who shall burn:
1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance,
storehouse, archives or general museum of the Government.
2. Any passenger train or motor vehicle in motion or vessel out of port.
3. In an inhabited place, any storehouse or factory of inflammable or explosive materials.

Art. 321. Other forms of arson. — When the arson consists in the burning of other property and
under the circumstances given hereunder, the offender shall be punishable:
1. By reclusion temporal or reclusion perpetua:
(a) if the offender shall set fire to any building, farmhouse, warehouse, hut, shelter, or vessel in
port, knowing it to be occupied at the time by one or more persons;
(b) If the building burned is a public building and value of the damage caused exceeds 6,000 pesos;
(c) If the building burned is a public building and the purpose is to destroy evidence kept therein
to be used in instituting prosecution for the punishment of violators of the law, irrespective of the
amount of the damage;
(d) If the building burned is a public building and the purpose is to destroy evidence kept therein
to be used in legislative, judicial or administrative proceedings, irrespective of the amount of the
damage; Provided, however, That if the evidence destroyed is to be used against the defendant
for the prosecution of any crime punishable under existing laws, the penalty shall be reclusion
perpetua;
(e) If the arson shall have been committed with the intention of collecting under an insurance
policy against loss or damage by fire.
2. By reclusion temporal:
(a) If an inhabited house or any other building in which people are accustomed to meet is set on
fire, and the culprit did not know that such house or building was occupied at the time, or if he
shall set fire to a moving freight train or motor vehicle, and the value of the damage caused
exceeds 6,000 pesos;
(b) If the value of the damage caused in paragraph (b) of the preceding subdivision does not exceed
6,000 pesos;
(c) If a farm, sugar mill, cane mill, mill central, bamboo groves or any similar plantation is set on
fire and the damage caused exceeds 6,000 pesos; and
(d) If grain fields, pasture lands, or forests, or plantings are set on fire, and the damage caused
exceeds 6,000 pesos.
3. By prision mayor:

3
(a) If the value of the damage caused in the case mentioned in paragraphs (a), (c), and (d) in the
next preceding subdivision does not exceed 6,000 pesos;
(b) If a building not used as a dwelling or place of assembly, located in a populated place, is set on
fire, and the damage caused exceeds 6,000 pesos;
4. By prision correccional in its maximum period to prision mayor in its medium period:
(a) If a building used as dwelling located in an uninhabited place is set on fire and the damage
caused exceeds 1,000 pesos;
(b) If the value or the damage caused in the case mentioned in paragraphs (c) and (d) of subdivision
2 of this article does not exceed 200 pesos.
5. By prision correccional in its medium period to prision mayor in its minimum period, when the
damage caused is over 200 pesos but does not exceed 1,000 pesos, and the property referred to
in paragraph (a) of the preceding subdivision is set on fire; but when the value of such property
does not exceed 200 pesos, the penalty next lower in degree than that prescribed in this
subdivision shall be imposed.
6. The penalty of prision correccional in its medium and maximum periods, if the damage caused
in the case mentioned in paragraph (b) of subdivision 3 of this article does not exceed 6,000 pesos
but is over 200 pesos.
7. The penalty of prision correccional in its minimum and medium periods, if the damage caused
in the case mentioned paragraph (b) subdivision 3 of this article does not exceed 200 pesos.
8. The penalty of arresto mayor and a fine ranging from fifty to one hundred per centum if the
damage caused shall be imposed, when the property burned consists of grain fields, pasture lands,
forests, or plantations when the value of such property does not exceed 200 pesos. (As amended
by R.A. 5467, approved May 12, 1969).

Art. 322. Cases of arson not included in the preceding articles. — Cases of arson not included in
the next preceding articles shall be punished:
1. By arresto mayor in its medium and maximum periods, when the damage caused does not
exceed 50 pesos;
2. By arresto mayor in its maximum period to prision correccional in its minimum period, when
the damage caused is over 50 pesos but does not exceed 200 pesos;
3. By prision correccional in its minimum and medium periods, if the damage caused is over 200
pesos but does not exceed 1,000 pesos; and
4. By prision correccional in its medium and maximum periods, if it is over 1,000 pesos.

Art. 323. Arson of property of small value. — The arson of any uninhabited hut, storehouse, barn,
shed, or any other property the value of which does not exceed 25 pesos, committed at a time or
under circumstances which clearly exclude all danger of the fire spreading, shall not be punished
by the penalties respectively prescribed in this chapter, but in accordance with the damage caused
and under the provisions of the following chapter.

Art. 324. Crimes involving destruction. — Any person who shall cause destruction by means of
explosion, discharge of electric current, inundation, sinking or stranding of a vessel, intentional
damaging of the engine of said vessel, taking up the rails from a railway track, maliciously changing
railway signals for the safety of moving trains, destroying telegraph wires and telegraph posts, or

4
those of any other system, and, in general, by using any other agency or means of destruction as
effective as those above enumerated, shall be punished by reclusion temporal if the commission
has endangered the safety of any person, otherwise, the penalty of prision mayor shall be
imposed.

Art. 325. Burning one’s own property as means to commit arson. — Any person guilty of arson or
causing great destruction of the property belonging to another shall suffer the penalties
prescribed in this chapter, even though he shall have set fire to or destroyed his own property for
the purposes of committing the crime.

Art. 326. Setting fire to property exclusively owned by the offender. — If the property burned shall
be the exclusive property of the offender, he shall be punished by arresto mayor in its maximum
period to prision correccional in its minimum period, if the arson shall have been committed for
the purpose of defrauding or causing damage to another, or prejudice shall actually have been
caused, or if the thing burned shall have been a building in an inhabited place.

Art. 326-A. In cases where death resulted as a consequence of arson. — If death resulted as a
consequence of arson committed on any of the properties and under any of the circumstances
mentioned in the preceding articles, the court shall impose the death penalty.

Art. 326-B. Prima facie evidence of arson. — Any of the following circumstances shall constitute
prima facie evidence of arson:
1. If after the fire, are found materials or substances soaked in gasoline, kerosene, petroleum, or
other inflammables, or any mechanical, electrical chemical or traces or any of the foregoing.
2. That substantial amount of inflammable substance or materials were stored within the building
not necessary in the course of the defendant’s business; and
3. That the fire started simultaneously in more than one part of the building or locale under
circumstances that cannot normally be due to accidental or unintentional causes: Provided,
however, That at least one of the following is present in any of the three above-mentioned
circumstances:
(a) That the total insurance carried on the building and/or goods is more than 80 per cent of the
value of such building and/or goods at the time of the fire;
(b) That the defendant after the fire has presented a fraudulent claim for loss.
The penalty of prision correccional shall be imposed on one who plants the articles above-
mentioned, in order to secure a conviction, or as a means of extortion or coercion. (As amended
by R.A. 5467, approved May 12, 1969).

PRESIDENTIAL DECREE No. 1744, November 11, 1980

Reason for the Enactment:

There were findings from police authorities that had been rampant and wanton burnings of
residential houses, public buildings, markets, hotels, and other commercial establishments. Thus,
it was deemed that, to effectively discourage and deter the commission of arson, and to prevent

5
destruction of properties and protect the lives of innocent people, it was necessary that the capital
punishment be imposed upon arsonists.

Article 320 of the Revised Penal Code was amended further as follows:
Section 1. Article 320 of the Revised Penal Code shall read as follows:

"Article 320 Destructive Arson. The penalty of reclusion temporal in its maximum period to death
shall be imposed upon any person who shall burn:
1. One (1) or more buildings or edifices, consequent to one single act of burning, or as result of
simultaneous burnings, or committed on several or different occasions;
2. Any building of public or private ownership, devoted to the use of the public in general, or where
people usually gather or congregated for a definite purpose such as but not limited to official
governmental function or business, private transaction, commerce, trade, worship, meetings and
conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels,
transient dwellings, public conveyance or stops or terminals, regardless of whether the offender
had knowledge that there are persons in said building or edifice at the time it is set on fire, and
regardless also of whether the building is actually inhabited or not.
3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or
convenience, or public use, entertainment or leisure.
4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted
to the service of public utilities.
5. Any building, the burning of which is for the purpose of concealing or destroying evidence of
another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to
collect from insurance.

Irrespective of the application of the above enumerated qualifying circumstances, the penalty of
death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more
persons or by a group of persons, regardless of whether their purpose is merely to burn or destroy
the building or the edifice, or the burning merely constitutes an overt act in the commission or
another violation of law.

The penalty of reclusion temporal in its maximum period to death shall also be imposed upon any
person who shall burn:
(a) Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance
storehouse, archives or general museum of the government.
(b) In an inhabited place, any storehouse or factory of inflammable or explosive materials.
If as a consequence of the commission of any of the acts penalized under this Article, death or
injury results, or any valuable documents, equipment, machineries, apparatus, or other valuable
properties were burned or destroyed, the mandatory penalty of death shall be imposed."

Section 2. Provisions of Articles 320, 321 and 322 of the Revised Penal Code which are or may be
inconsistent herewith are hereby repealed.

6
What is arson?

It is the criminal act of deliberately setting fire to property.
Section 2 of PD 1613: Any person who burns or sets fire to the property of another shall be
punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own
property under circumstances which expose to danger the life or property of another.

What is Destructive Arson?

It contemplates the malicious burning of structures, both public and private, hotels, buildings,
edifices, trains, vessels, aircraft, factories and other military, government or commercial
establishments by any person or group of persons. The classification of this type of crime is known
as Destructive Arson|||x x x The exceptionally severe punishment imposed for this crime takes
into consideration the extreme danger to human lives exposed by the malicious burning of these
structures; the danger to property resulting from the conflagration; the fact that it is normally
difficult to adopt precautions against its commission, and the difficulty in pinpointing the
perpetrators; and, the greater impact on the social, economic, security and political fabric of the
nation. (Buebos v. People, G.R. No. 163938, [March 28, 2008], 573 PHIL 347-368)

What is Simple Arson?

It contemplates the malicious burning of public and private structures, regardless of size, not
included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These
include houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations,
airports, wharves and other industrial establishments.x x x This separate classification of
Simple Arson recognizes the need to lessen the severity of punishment commensurate to the act
or acts committed, depending on the particular facts and circumstances of each case. (Buebos v.
People, G.R. No. 163938, [March 28, 2008], 573 PHIL 347-368)

What are the Elements of Arson?

People v. Omotoy y Cariaga,
G.R. No. 112719, [January 29, 1997],
334 PHIL 801-812
The provision properly applicable is Section 3(2) of said Presidential Decree No. 1613 which
imposes on the arsonist the penalty of reclusion temporal to reclusion perpetua if the property
burned is an inhabited house or dwelling. The element of arson under this section are (1) that
there is intentional burning; and (2) that what is intentionally burned is an inhabited house or
dwelling.

Prima facie evidence of Arson:

PD 1613

7
Section 6. Prima Facie evidence of Arson. Any of the following circumstances shall constitute prima
facie evidence of arson:
1. If the fire started simultaneously in more than one part of the building or establishment.
2. If substantial amount of flammable substances or materials are stored within the building
note necessary in the business of the offender nor for household us.
3. If gasoline, kerosene, petroleum or other flammable or combustible substances or
materials soaked therewith or containers thereof, or any mechanical, electrical, chemical,
or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing
are found in the ruins or premises of the burned building or property.
4. If the building or property is insured for substantially more than its actual value at the time
of the issuance of the policy.
5. If during the lifetime of the corresponding fire insurance policy more than two fires have
occurred in the same or other premises owned or under the control of the offender and/or
insured.
6. If shortly before the fire, a substantial portion of the effects insured and stored in a building
or property had been withdrawn from the premises except in the ordinary course of
business.
7. If a demand for money or other valuable consideration was made before the fire in
exchange for the desistance of the offender or for the safety of the person or property of
the victim.

Is there Frustrated Arson?

Conflicting Views:

U.S. v. Valdes y Guilgan, G.R. No. 14128,
[December 10, 1918],
39 PHIL 240-244
The fact of having set fire to some rags and jute sacks, soaked in kerosene oil and placed
near the partition of the entresol of an inhabited house, should not be qualified as the crime of
consummated arson, inasmuch as no part of the house had begun to burn, although fire would
have started in the said partition, had it not been extinguished on time. Under such circumstances,
the presumed author of the punishable act performed all the steps conducive to the burning of
the said house, but, notwithstanding these acts, he did not accomplish the criminal act which he
had intended to consummate by reason of causes independent of his will, and for this reason, it
follows that the crime committed was that of frustrated arson.

U.S. v. Po Chengco, G.R. No. 7819,
[November 21, 1912],
23 PHIL 487-494
Nor can such an offense be classified as frustrated arson because of the intervention of
strangers who extinguish the fire; nor because the incendiary foresaw that the fire would be put
out by the many people passing through the district at such an hour; nor by the greater or less
profitability of the destruction of the whole house or only part of it.

8

The frustrated stage of arson has been eased out.

The reasoning is that one cannot say that the offender, in the crime of arson, has already
performed all the acts of execution which could produce the destruction of the premises
through the use of fire, unless a part of the premises has begun to burn.

If it has not begun to burn, that means that the offender has not yet performed all
the acts of execution.

On the other hand, the moment it begins to burn, the crime is consummated.

Actually, the frustrated stage is already standing on the consummated stage except that the
outcome did not result. As far as the stage is concerned, the frustrated stage overlaps the
consummated stage. Because of this reasoning by the Court of Appeals in People v. Garcia, the
Supreme Court followed the analysis that one cannot say that the offender in the crime of arson
has already performed all the acts of execution which would produce the arson as a
consequence, unless and until a part of the premises had begun to burn.

In US v. Valdez, the offender had tried to burn the premises by gathering jute sacks laying these
inside the room. He lighted these, and as soon as the jute sacks began to burn, he
ran away. The occupants of the room put out the fire. The court held that what was committed
was frustrated arson. This case was much the way before the decision in the case of People v.
Garcia was handed down and the Court of Appeals ruled that there is no frustrated arson. But
even then, the analysis in the case of US v . V a l d e z is correct. This is because, in
determining whether the felony is attempted, frustrated or consummated, the court
does not only consider the definition under Article 6 of the Revised Penal Code, or the stages of
execution of the felony. When the offender has already passed the subjective stage of the felony,
it is beyond the attempted stage. It is already on the consummated or frustrated stage
depending on whether a felony resulted. If the felony did not result, frustrated. The attempted
stage is said to be within the subjective phase of execution of a felony. On the subjective phase
, it is that point in time when the offender begins the commission of an overt act until that
point where he loses control of the commission of the crime already . If he has reached that
point where he can no longer control the ensuing consequence, the crime has already
passed the subjective phase and, therefore, it is no longer attempted. The moment the
execution of the crime has already gone to that point where the felony should follow as a
consequence, it is either already frustrated or consummated. If the felony does not follow
as a consequence, it is already frustrated. If the felony follows as a consequence, it is
consummated.

What is the corpus delicti in Arson?

People v. Gutierrez y Cortez,
G.R. No. 100699,

9
[July 5, 1996],
327 PHIL 679-688
Proof of the corpus delicti, indeed, is indispensable in the prosecution of arson as in all
kinds of criminal offenses as well.

Corpus delicti means the substance of the crime; it is the fact that a crime has actually been
committed.

In arson, the corpus delicti rule is generally satisfied by proof of the bare occurrence of the
fire and of its having been intentionally caused.
Even the uncorroborated testimony of a single eyewitness, if credible, may be enough to prove
the corpus delicti and to warrant conviction.

In this case, the charge against appellant was amply supported in evidence by the
eyewitness accounts of Felipe Enriquez and Mario Alano. Also offered in evidence were copies of
the police "blotters" of two barangays reflecting the report that appellant had thrown a bag of
gasoline at the house of Mario Alano, then lit it and, after setting a portion of the house on fire,
fled. As regards appellant's identity, Enriquez testified that he and appellant's brother and sister
were near a Meralco post when appellant went past them. Enriquez followed appellant and saw
how the latter threw the substance he was carrying at Alano's house. The conditions of visibility
were favorable. Indeed, even the recognition by Mario Alano of appellant's voice could have
sufficed to pin down culpability.

Qualifying circumstances in Arson:

People v. Omotoy y Cariaga,
G.R. No. 112719,
[January 29, 1997],
334 PHIL 801-812
Presidential Decree No. 1613 pronounces as guilty of arson any person who deliberately
burns another person's property, wherever located. The circumstance that the property burned is
located in an urban, congested or populated area merely qualified the offense and converts it into
"destructive arson" punishable, under Section 2(7) of the law, by reclusion temporal in its
maximum period to reclusion perpetua. On the other hand, under Section 4(4) of the same law,
the circumstance that the perpetrator of the arson is a criminal syndicate merely serves as a
special aggravating circumstance.

People v. Soriano, G.R. No. 142565,
[July 29, 2003],
455 PHIL 77-100
If special aggravating circumstances are present in the commission of Simple Arson, the
penalty under Sec. 3 shall be imposed in its maximum period: (a) If committed with intent to gain;
(b) If committed for the benefit of another; (c) If the offender is motivated by spite or hatred
towards the owner or occupant of the property burned; and, (d) If committed by a syndicate, or

10
group of three (3) or more persons. If by reason, or on the occasion of Simple Arson death results,
the penalty of reclusion perpetua to death shall be imposed.

People v. Soriano, G.R. No. 142565,
[July 29, 2003],
455 PHIL 77-100
The special aggravating circumstance that accused-appellant was "motivated by spite or
hatred towards the owner or occupant of the property burned" cannot be appreciated in the
present case where it appears that he was acting more on impulse, heat of anger or risen temper
rather than real spite or hatred that impelled him to give vent to his wounded ego. Nothing can
be worse than a spurned lover or a disconsolate father under the prevailing circumstances that
surrounded the burning of the Cimagala house. Thus, accused-appellant must be held guilty
of Simple Arson penalized under Sec. 3. par. 2. of PD 1613 for the act of intentionally burning an
inhabited house or dwelling.

People v. Oliva,
G.R. No. 122110,
[September 26, 2000],
395 PHIL 265-278
Under Section 3 (2) of the law, the penalty of reclusion temporal to reclusion perpetua shall
be imposed if the property burned is "any inhabited house or dwelling." Under the amendment, it
is the fact that the house burned is inhabited that qualifies the crime. There is no need to prove
that the accused had actual knowledge that the house was inhabited.

People v. Lorenzo,
G.R. No. 96713,
[October 17, 1991],
280 PHIL 92-112
In the present case, the trial court found that the crime of arson was committed by a
syndicate of more or less seventy (70) persons armed with guns but with respect to the
aggravating circumstance under subparagraph 3 of section 4 aforecited, no pronouncement in
relation thereto was made. The prosecution failed to substantiate the claim that the accused in
the instant case were motivated by spite or hatred towards Albino Miranda and his family.
Considering that the crime was committed by a syndicate of more or less seventy (70) persons,
there is ample basis to infer the presence of conspiracy from the acts of the accused-appellant
and his other co-accused that tend to show community of criminal purpose.

Mitigating Circumstance in Arson: AN IMPULSE OF INVIDIOUS OR RESENTFUL FEELINGS

People v. Soriano,
G.R. No. 142565,
[July 29, 2003],
455 PHIL 77-100

11
 In addition, we find that there exists a mitigating circumstance that should have been
appreciated by the trial court in determining the penalty to be imposed on the accused-appellant:
a circumstance similar and analogous to passion and obfuscation.

An impulse of invidious or resentful feelings contemplates a situation akin to passion and
obfuscation. This circumstance is mitigating since, like passion and obfuscation, the accused who
acts with these feelings suffers a diminution of his intelligence and intent, a reduction in his mental
and rational faculties.

It has been satisfactorily shown by the court a quo that the lovers' quarrel between Nestor
Soriano and Honey Rosario Cimagala ignited the chain of events that led to the conflagration that
occurred in the early dawn of 18 September 1998. Passions were inflamed in the evening of 17
September 1998 due to the impending return of Soriano to Manila the following day with the
prospect of leaving behind in Davao his son Otoy who bears his namesake "Nestor Jr." But reason,
unfortunately, did not prevail; emotions took control of the events that were to unfold. His efforts
went to naught; his attempts to win back his forbidden love were likewise thwarted. Verily, the
resentment accused-appellant felt came from the realization that he may never see his son again
once he left Davao; that his utter frustration in trying to convince Honey Rosario Cimagala to return
to Manila with their son brought with it a reduction of his rational faculties within that moment in
time.

Although emanating from lawful sentiments, the actuations of accused-appellant led to his
criminal act of burning the Cimagala home, and other neighboring houses. In other words,
accused-appellant was in a state of extreme emotional stress.

DESTRUCTIVE ARSON VS SIMPLE ARSON:

Buebos v. People,
G.R. No. 163938,
[March 28, 2008],
573 PHIL 347-368
The nature of Destructive Arson is distinguished from Simple Arson by the degree of
perversity or viciousness of the criminal offender. The acts committed under Art. 320 of The
Revised Penal Code constituting Destructive Arson are characterized as heinous crimes "for being
grievous, odious and hateful offenses and which, by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and ordered society."

On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes
with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty.
In other words, Simple Arson contemplates crimes with less significant social, economic, political
and national security implications than Destructive Arson. However, acts falling under
Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying
circumstances present.

12

In the present case, the act committed by accused-appellant neither appears to be heinous
nor represents a greater degree of perversity and viciousness as distinguished from those acts
punishable under Art. 320 of the Revised Penal Code. No qualifying circumstance was established
to convert the offense to Destructive Arson. The special aggravating circumstance that accused-
appellant was "motivated by spite or hatred towards the owner or occupant of the property
burned" cannot be appreciated in the present case where it appears that he was acting more on
impulse, heat of anger or risen temper rather than real spite or hatred that impelled him to give
vent to his wounded ego. Nothing can be worse than a spurned lover or a disconsolate father
under the prevailing circumstances that surrounded the burning of the Cimagala house. Thus,
accused-appellant must be held guilty of Simple Arson penalized under Sec. 3, par. 2, of PD
1613 for the act of intentionally burning an inhabited house or dwelling.

People v. Soriano,
G.R. No. 142565,
[July 29, 2003],
455 PHIL 77-100
The Revised Penal Code remains the governing law for Simple Arson. This decree
contemplates the malicious burning of public and private structures, regardless of size, not
included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include
houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports,
wharves and other industrial establishments. Although the purpose of the law on Simple Arson is
to prevent the high incidence of fires and other crimes involving destruction, protect the national
economy and preserve the social, economic and political stability of the nation, PD 1613 tempers
the penalty to be meted to offenders. This separate classification of Simple Arson recognizes the
need to lessen the severity of punishment commensurate to the act or acts committed, depending
on the particular facts and circumstances of each case.

People v. Gutierrez y Cortez,
G.R. No. 100699,
[July 5, 1996],
327 PHIL 679-688
The information charges appellant with "violation of P.D. 1613" without specifying the
particular provision breached. The information having failed to alleged whether or not the burnt
house is inhabited, and not having been established that the house is situated in a populated or
congested area, appellant should be deemed to have only been charged with plain arson under
Section 1 of the decree.

Kaloocan City might be a densely populated part of the metropolis but its entire territory
cannot be said to be congested. Although the whole 2-storey wood and galvanized iron house has
not been completely gutted by the fire, the crime committed is still consummated arson. It is
enough that a portion thereof is shown to have been destroyed.

13
 Under Section 1 of the decree, the offense of simple arson committed is punishable
by prision mayor. The Court feels that the trial court should not have appreciated the "special"
aggravating circumstance, under Section 4(3) of the decree, of the offender having been
"motivated by spite or hatred towards the owner or occupant of the property burned." The
prosecution does not dispute the mauling of appellant by a son of Mario Alano just a few hours
before the incident. It would appear to us to be more of impulse, heat of anger or risen temper,
rather than real spite or hatred, that has impelled appellant to give vent to his wounded ego.

People vs. Luminda,
G.R. No. 200954 (Notice),
[October 14, 2015]
In this case, Luminda's degree of perversity and viciousness — essential characteristics of
destructive arson. — is shown by the following: (a) he and thirty (30) other armed persons
surrounded the house of Renato Sulatan and fired at it; (b) they instigated Relito Angel to burn the
Mitsubishi Pajero; and (c) they were indifferent to the resulting effects of also burning the house
nearby.|

People v. Soriano,
G.R. No. 142565,
[July 29, 2003],
455 PHIL 77-100
The nature of Destructive Arson is distinguished from Simple Arson by the degree of
perversity or viciousness of the criminal offender. The acts committed under Art. 320 of The
Revised Penal Code constituting Destructive Arson are characterized as heinous crimes "for being
grievous, odious and hateful offenses and which, by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and ordered society." On the other
hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of
perversity and viciousness that the law punishes with a lesser penalty.
In other words, Simple Arson contemplates crimes with less significant social, economic,
political and national security implications than Destructive Arson. However, acts falling
under Simple Arson may nevertheless be converted into Destructive Arson depending on the
qualifying circumstances present.

COMPLEX CRIME OF ARSON:

People v. Cedenio y Rasonable,
G.R. No. 93485,
[June 27, 1994],
303 PHIL 366-380
It is settled that there is no complex crime of arson with homicide. . . . Except for the
imposable penalty, the rule has not changed. Accordingly, if death results by reason or on the
occasion of arson, the crime is simply arson although the imposable penalty as provided in Sec. 5

14
of P. D. No. 1613, which expressly repealed Arts. 320 to 326-B of The Revised Penal Code, is
now reclusion perpetua to death.

If the objective of the offender is to kill and arson is resorted to as the means to accomplish
the crime, the offender can be charged with murder only. But if the objective is to kill — and in
fact the offender has already done so — and arsonist resorted to as a means to cover up the killing,
the offender may be convicted of two separate crimes of either homicide or murder, and arson.

ARSON WITH HOMICIDE, SIMPLE ARSON OR MURDER?

People v. Dolendo y Fediles,
G.R. No. 223098,
[June 3, 2019]
Accordingly, in cases where both burning and death occur, in order to determine what
crime/crimes was/were perpetrated — whether arson, murder or arson and homicide/murder, it
is de rigueur to ascertain the main objective of the malefactor:
a) if the main objective is the burning of the building or edifice, but death results by
reason or on the occasion of arson, the crime is simply arson, and the resulting
homicide is absorbed;
b) if, on the other hand, the main objective is to kill a particular person who may be
in a building or edifice, when fire is resorted to as the means to accomplish such
goal the crime committed is murder only; lastly,
c) if the objective is, likewise, to kill a particular person, and in fact the offender has
already done so, but fire is resorted to as a means to cover up the killing, then there
are two separate and distinct crimes committed — homicide/murder and arson.

ARSON THRU RECKLESS IMPRUDENCE

People v. Bueno,
G.R. No. L-10849,
[April 30, 1958],
103 PHIL 583-588
The provision applicable is the first paragraph of Article 365, which reads:
"Any person who, by reckless imprudence, shall commit any act which, had it
been intentional, would constitute grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prision correccional in its minimum
period; if it would have constituted a less grave felony, the penalty of arresto
mayor in its minimum and medium periods shall be imposed."
in relation to paragraph 5 of Article 321, which provides:
"When the arson consists in the burning of other property and under the
circumstances given hereunder, the offender shall be punished:
xxx xxx xxx
"By prision correccional in its medium period to prision mayor in its minimum
period, when the damage caused is over 200 pesos but does not exceed 1,000

15
 pesos, and any of the property referred to in paragraphs (a) and (b) of the next
preceding subdivision is set on fire; but when the value of such property does
not exceed 200 pesos, the penalty next lower in degree than that prescribed in
this subdivision shall be imposed when the property burned is a building used as
a dwelling in an uninhabited place, and the penalty of arresto menor and a fine
ranging from fifty to one hundred per centum of the damage caused shall be
imposed, when the property burned consists of grain fields, pasture lands,
forests or plantations."
and that, pursuant to these provisions, the penalty imposable in the case at bar, as held in the
Valmonte case, is arresto mayorin its minimum and medium periods, which is within the
jurisdiction of the Justice of the Peace Court.
The third paragraph of Article 365, however, reads:
"When the execution of the act covered by this article shall have only resulted
in damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damages to three times such
value, but which shall in no case be less than 25 pesos."
It is obvious, that the case at bar falls squarely under this provision. xxx Inasmuch as the reckless
and imprudent act of accused-appellant has "only resulted in damage to property," worth
according to the complaint and the information, P500, the maximum penalty imposable is,
therefore, a fine of P1,500, which is beyond the jurisdiction of the justice of the Peace Court. As a
consequence, neither was the Court of First Instance, in the exercise of its appellate jurisdiction,
competent to hear and decide the case on the merits, particularly, over the defendant's objection.

ARSON IS NOT MEASURED BY VALUE OF PROPERTY THAT MAY BE DESTROYED BUT RATHER BY
HUMAN LIVES EXPOSED TO DESTRUCTION.

People v. Acosta,
G.R. No. 126351,
[February 18, 2000],
382 PHIL 810-824
Lastly, it would not be amiss here to point out that "[i]n the crime of arson, the enormity
of the offense is not measured by the value of the property that may be destroyed but rather by
the human lives exposed to destruction." It is indeed a heinous crime that the law wisely seeks to
suppress with the most serious penalty because of its grave anti-social character.

16
NOTES ON ANTI-FENCING LAW

Anti-Fencing Law, Presidential Decree No. 1612, [March 2, 1979]

PD 1612 came about as a result of the reports from law enforcement agencies revealing that
there is rampant robbery and thievery of government and private properties and that such
robbery and thievery have become profitable on the part of the lawless elements because of the
existence of ready buyers, commonly known as fence, of stolen properties. Under the Revised
Penal Code, a fence can be prosecuted only as an accessory after the fact and punished lightly.
Hence, it is imperative to impose heavy penalties on persons who profit by the effects of the
crimes of robbery and theft.

WHAT IS FENCING?

Under Section 2 of the said law, fencing is defined as the act of any person who, with intent gain
for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of,
or shall buy and sell, or in any other manner deal in any article, item, object or anything of value
which he knows, or should be known to him, to have been derived from the proceeds of the
crime of robbery or theft. On the other hand, fence is defined as any person, firm, association,
corporation or partnership or other organization who/which commits the act of fencing.

ELEMENTS OF FENCING:

Given the definition, a person may face criminal charges if the following elements are present: 1)
a robbery or theft has been committed; 2) the accused, who took no part in the robbery or theft,
“buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in
any manner deals in any article or object taken” during that robbery or theft; 3) the accused
knows or should have known of that the thing was derived from that crime; and 4) by the deal he
makes, he intends to gain for himself or for another.
PRESUMPTION OF FENCING (Sec. 5)

Mere possession of any good, article, item, object or anything of value which has been the subject
of robbery or thievery shall be prima facie evidence of fencing.

NOTA BENE:

Fencing may be shown when the buyer bought the article at a price way below ordinary prices.
The prosecution must prove that a crime of theft or robbery has been committed (first element)
but there need not be an information filed in court before the crime of fencing is prosecuted.
Likewise, it is not a complete defense that the accused has no knowledge that the goods or
articles found in his possession had been the subject of robbery since fencing also is committed
if the accused “should have known” that the goods or articles had been the subject of the same
predicate criminal offenses. Moreover, Section 5 of PD1612 provides for the presumption of
fencing — mere possession of any good, article, item, object, or anything of value which has

1
been the subject of robbery or thievery shall be prima facie evidence of fencing. With this legal
presumption, lack of knowledge of the commission of theft or robbery does not negate criminal
liability. Rather, the accused must sufficiently rebut the presumption provided for by the law.

CASES ON FENCING:

Dimat v. People,
G.R. No. 181184,
[January 25, 2012],
680 PHIL 233-238

Jurisprudence involving fencing abounds. In this case, a car bearing a suspicious plate number
was spotted by the officers of Traffic Management Group. Because of this, they stopped and
inspected the vehicle and discovered that its chassis and motor numbers corresponded to a
vehicle previously reported as carnapped. The accused in this case feigned ignorance claiming he
bought the car in good faith and for value under the corresponding deed of sale (which,
however, reflected chassis and engine numbers different from that indicated in the inspected
vehicle’s certificate of registration). This notwithstanding, the accused was found guilty of
fencing under PD 1612 because the abovementioned elements are present: the vehicle was
reported as carnapped and the carnapper sold the same to the accused who did not take part in
the crime. The accused should have known that the car was stolen because it was not properly
documented (as the deed of sale and registration certificate did not reflect the correct numbers
of the vehicle’s engine and chassis and the seller had no documents to show). This should have
prompted every cautious buyer to consider that the property subject of the sale could have
originated from an illegal source. The accused’s main defense of good faith is also flawed since
PD1612 is a special law. The crime is deemed committed once the law is violated despite the
absence of criminal intent.

ROLANDO P. DELA TORRE vs. COMELEC
G.R. No. 121592.
July 5, 1996.

"Fencing” is the act of any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or theft."

ELEMENTS — From the foregoing definition may be gleaned the elements of the crime of fencing
which are: "1. A crime of robbery or theft has been committed; 2. The accused who is not a
principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article,
item, object or anything of value, which have been derived from the proceeds of the said crime.
3. The accused knows or should have known that the said article, item, object or anything of

2
value has been derived from the proceeds of the crime of robbery or theft; and 4. There is, on
the part of the accused, intent to gain for himself or for another."

FENCING IS A CRIME INVOLVING MORAL TURPITUDE. — Moral turpitude is deducible from the
third element. Actual knowledge by the "fence" of the fact that property received is stolen
displays the same degree of malicious deprivation of one's rightful property as that which
animated the robbery or theft, which, by their very nature, are crimes of moral turpitude. And
although the participation of each felon in the unlawful taking differs in point in time and in
degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded one's
peaceful dominion for gain — thus deliberately reneging in the process "private duties" they owe
their "fellowmen" or "society" in the manner "contrary to . . . accepted and customary rule of
right and duty . . ., justice, honesty . . . or good morals." The same underlying reason holds even
if the "fence" did not have actual knowledge, but merely "should have known" the origin of the
property received. In this regard, the Court held: "When knowledge of the existence of a
particular fact is an element of the offense, such knowledge is established if a person is aware of
the high probability of its existence unless he actually believes that it does not exist. On the other
hand, the words 'should know' denote the fact that a person of reasonable prudence and
intelligence would ascertain the fact in the performance of his duty to another or would govern
his conduct upon assumption that such fact exists." Verily, circumstances normally exist to
forewarn, for instance, a reasonably vigilant buyer that the object of the same may have been
derived from the proceeds of robbery or theft. Such circumstances include the time and place of
the sale, both of which may not be in accord with the usual practices of commerce. The nature
and condition of the goods sold, and the fact that the seller is not regularly engaged in the
business of selling goods may likewise suggest the illegality of their source, and therefore should
caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere
possession of any goods, . . ., object or anything of value which has been the subject of robbery
or thievery shall be prima facie evidence of fencing" — a presumption that is, according to the
Court, "reasonable for no other natural or logical inference can arise from the established fact of
. . . possession of the proceeds of the crime of robbery or theft."

Dunlao, Sr. v. Court of Appeals,
G.R. No. 111343,
[August 22, 1996],
329 PHIL 613-624

MERE POSSESSION OF THE STOLEN ARTICLES IS ENOUGH TO GIVE RISE TO A PRESUMPTION OF
FENCING. — The law does not require proof of purchase of the stolen articles by petitioner, as
mere possession thereof is enough to give rise to a presumption of fencing. It was incumbent
upon petitioner to overthrow this presumption by sufficient and convincing evidence but he
failed to do so. All petitioner could offer, by way of rebuttal, was a mere denial and his incredible
testimony that a person aboard a jeep unloaded the pipes in front of his establishment and left
them there.

Intent to gain need not be proved in crimes punishable by a special law such as P.D. 1612.

3
MALA IN SE VS MALA PROHIBITA -- The law has long divided crimes into acts wrong in
themselves called "acts mala in se," and acts which would not be wrong but for the fact that
positive law forbids the, called "acts mala prohibita." 6 This distinction is important with
reference to the intent with which a wrongful act is done. The rule on the subject is that in acts
mala in se, the intent governs, but in acts mala prohibita, the only inquiry is, has the law been
violated? 7 When an act is illegal, the intent of the offender is immaterial.
ANIMUS FIRANDI -- "On the aspect of animus furandi, petitioner is of the belief that this element
was not clearly established by the People's evidence and he, therefore, draws the conclusion
that respondent court seriously erred in presuming the existence of intent to gain. Again, this
supposition ignores the fact that intent to gain is a mental state, the existence of which is
demonstrated by the overt acts of a person (Soriano vs. People, 88 Phil. 368 [1951]; 1 Reyes,
Revised Penal Code, Eleventh Rev. Ed., 1977, p. 45; 1 Aquino, Revised Penal Code, 1988 Ed., p.
197). And what was the external demeanor which petitioner showed from which the trial court
and respondent court inferred animus furandi? These circumstances were vividly spelled in the
body of the judgment which petitioner chose to blandly impugn and over which he remains
indifferent even at this crucial stage. Withal, the sinister mental state is presumed from the
commission of an unlawful act in bringing out the tires from his bodega which were loaded on
his pick-up (People vs. Sia Teb Ban, 54 Phil. 52 [1929]; 1 Reyes, supra at P. 46; Section 3(b), Rule
131, Revised Rules on Evidence). At any rate, dolo is not required in crimes punished by a special
stature like the Anti-Fencing Law of 1979 (U.S. vs. Go Chico, 14 Phil. 128 [1909]; 1 Reyes, supra at
p. 58) because it is the act alone, irrespective of the motives which constitutes the offense (U.S.
vs. Siy Cong Bieng, et al., 30 Phil. 577 [1915]; 1 Reyes, supra, at p. 59; 1 Aquino, supra. at p. 52)."

The law does not require proof of purchase of the stolen articles by petitioner, as mere
possession thereof is enough to give rise to a presumption of fencing. 10
It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing
evidence.

PEOPLE vs. DE GUZMAN,
G.R. No. 77368.
October 5, 1993.

Robbery is the taking of personal property belonging to another, with intent to gain, by means of
violence against or intimidation of any person, or using force upon anything. "Fencing," upon the
other hand, is the act of any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or shall be known
to him, to have been derived from the proceeds of the crime of robbery or theft. The crimes of
robbery and fencing are clearly then two distinct offenses. The law on fencing does not require
the accused to have participated in the criminal design to commit, or to have been in any wise
involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or
theft made to depend on an act of fencing in order that it can be consummated. True, the object
property in fencing must have been previously taken by means of either robbery of theft but the
place where the robbery or theft occurs is inconsequential.

4

PENALTIES
Any person guilty of fencing shall be punished as hereunder indicated:
(a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos
but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty
years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty
pertaining thereto provided in the Revised Penal Code shall also be imposed.
(b) The penalty of prision correccional in its medium and maximum periods, if the value of the
property robbed or stolen is more than 6,000 pesos but not exceeding 12,000 pesos.
(c) The penalty of prision correccional in its minimum and medium periods, if the value of the
property involved is more than 200 pesos but not exceeding 6,000 pesos.
(d) The penalty of arresto mayor in its medium period to prision correccional in its minimum
period, if the value of the property involved is over 50 pesos but not exceeding 200 pesos.
(e) The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not
exceeding 50 pesos.
(f) The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.

5
Batas Pambansa Blg. 22, Approved: April 3, 1979.

Acts penalized: (Section 1)

FIRST SITUATION:
Elements
1. Offender makes or draws and issues any check
2. The same to be applied on account or for value
3. He knows that at the time of issue that he does not have sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its presentment
4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds
or credit or would have been dishonored for the same reason had not the drawer,
without any valid reason, ordered the bank to stop payment

SECOND SITUATION:
Elements
1. Offender who, having sufficient funds in or credit with the drawee bank, makes or draws
and issues a check
2. He fails to keep sufficient funds or to maintain a credit to cover the full amount of the
check if presented within a period of ninety (90) days from the date appearing thereon
3. For which reason it is dishonored by the drawee bank.

Note:

o When the check is drawn by a corporation, company or entity, the
person or persons who actually signed the check in behalf of such
drawer shall be liable under BP 22.

o The term “for value” is construed to mean “an obligation incurred
simultaneously with the issuance of the check”.

o Value simply means the valuable consideration.

o Issue means the first delivery of the instrument complete in form, to a
person who takes it as a holder.

Penalty:

Imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less
than but not more than double the amount of the check which fine shall in no case exceed Two
Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.

When is a check considered dishonored?

1
A check is considered dishonored when it is presented for payment and payment is refused or
cannot be obtained.

A check is dishonored when the account against which it was drawn is insufficient or is closed or
payment is “stopped” without valid reason.

When is there prima facie evidence of knowledge of insufficiency of funds or credit?
(Section 2)

Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check
payment of which is refused by the drawee because of insufficient funds in or credit with such
bank, when presented within ninety (90) days from the date of the check, shall be prima facie
evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays
the holder thereof the amount due thereon, or makes arrangements for payment in full by the
drawee of such check within (5) banking days after receiving notice that such check has not been
paid by the drawee.

What is the duty of the drawee bank when it refuses payment of the check? (Section 3)

It shall be the duty of the drawee of any check, when refusing to pay the same to the holder
thereof upon presentment, to cause to be written, printed, or stamped in plain language
thereon, or attached thereto, the reason for drawee's dishonor or refusal to pay the same:
Provided, That where there are no sufficient funds in or credit with such drawee bank, such fact
shall always be explicitly stated in the notice of dishonor or refusal…

What is the prima facie evidence of the making or issuance of a bouncing check?

The introduction in evidence of any unpaid and dishonored check, having the drawee's refusal to
pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall
be prima facie evidence of the making or issuance of said check, and the due presentment to the
drawee for payment and the dishonor thereof, and that the same was properly dishonored for
the reason written, stamped or attached by the drawee on such dishonored check.

Is it possible for the same person to be punished under the Bouncing Checks Law and the Revised
Penal Code for the same offense and/or act simultaneously? (Section 5)

Prosecution under this Act shall be without prejudice to any liability for violation of any provision
of the Revised Penal Code.

Article 315 (2)(d) of the Revised Penal Code

By postdating a check, or issuing a check in payment of an obligation
when the offender had no funds in the bank or his funds deposited
therein were not sufficient to cover the amount of the check. The

2
 failure of the drawer of the check to deposit the amount necessary to
cover his check within three (3) days from receipt of notice from the
bank and/or payee or holder that said check has been dishonored for
lack or insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act.

Is there no “double jeopardy” when a person is punished for issuing a bouncing check under both
the Revised Penal Code and BP 22?

It is submitted that there is none. This is so because the Constitutional provision on double
jeopardy speaks of “punishment for the same offense” and not for the same act. Thus, if “a
single act may be an offense against two statutes, and if each statutes requires proof of an
additional fact which the other does not, an acquittal or conviction under either statute does not
exempt the defendant from prosecution or conviction under the other”. (Judge Jesus F.
Guerrero)

Distinction between BP 22 and Art. 315(2)(d) RPC:

o The maker’s/drawer’s/issuer’s knowledge of insufficient funds or credit with the drawee
bank for the payment of such check at the time of issue is a requirement under BP 22 but
not under Art. 315(2)(d)RPC.
o The requirement of deceit constituting false pretense or fraudulent act is mandated in
Art. 315(2)(d) RPC but never required in BP 22.
o The maker’s/drawer’s/issuer’s failure to pay in full the holder/payee within five (5)
banking days after receiving notice that such check has not been paid by the drawee
bank shall be conclusive evidence of knowledge of such insufficiency of funds or credit
under BP22. This is not so under Art. 315 (2)(d) RPC.
o Failure to give the issuer/maker/drawer of a bouncing check an opportunity to make
good with the payment of his obligation within five (5) banking days after receiving the
notice that such check has not been paid by the drawee shall cause the dismissal of the
complaint.

Situs of the criminal action of a bouncing check.

The venue of the offense of BP22 is determined either by the situs of the issuance or of the
dishonor of the check. This is so because offenses punishable under BP22 require the fact of
dishonor as essential ingredient thereof, venue of the offense may likewise be laid in the place
where the check was dishonored following the rules on continuing or transitory offenses.

VENUE OF TRANSITORY OFFENSES, HOW DETERMINED:

Violation of B.P. Blg. 22 is in the nature of a continuing crime. Venue
is determined by the place where the elements of making, issuing, or
drawing of the check land delivery thereof are committed. Thus, as

3
 explained in People vs. Yabut "[t]he theory is that a person indicted
with a transitory offense may be validly tried in any jurisdiction where
the offense was in part committed. The place where the bills were
written, signed, or dated does not necessarily fix or determine the
place where they were executed. What is of decisive importance is
the delivery thereof. The delivery of the instrument is the final act
essential to its consummation as an obligation."

In prosecutions for violation of B.P. Blg. 22, therefore, prejudice or damage is not a pre-requisite
for conviction.

In the case of People vs. Nitafan (215 SCRA 79), the Supreme Court ruled that the argument
surrounding the issuance of the checks need not be first looked into, since the law clearly
provides that the mere issuance of any kind of check, regardless of the intent of the parties; i.e.,
whether the check was intended merely to serve as a guarantee or deposit, but which check was
subsequently dishonored, makes the person who issued the check liable. The intent of the law is
to curb the proliferation of worthless checks and to protect the stability and integrity of checks
as a means of payment of obligation (Lazaro vs. Court of Appeals, 227 SCRA 723, 726-727)

FACT THAT OBJECT OF CONTRACT WAS NOT OF GOOD QUALITY, IRRELEVANT:

The fact that the object of the contract, the animal feeds, was not of good quality is irrelevant in
the prosecution of a case involving B.P. Blg. 22, for the said law was enacted to prohibit, under
pain of penal sanctions, the making of worthless checks and putting them in circulation. It is not
the non-payment of an obligation which the law punishes, but the act of making and issuing a
check that is dishonored upon presentment for payment.


CASES:

LILANY YULO y BILLONES vs. PEOPLE, [G.R. No. 142762. March 04, 2005]

The elements of the offense penalized by Batas Pambansa Blg. 22 are:
1. the making, drawing, and issuance of any check to apply for account or for value;
2. the knowledge of the maker, drawer, or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment of the check in full
upon its presentment; and
3. the subsequent dishonor of the check by the drawee bank for insufficient funds or credit
or dishonor for the same reason had not the drawer, without any valid cause, ordered
the bank to stop payment.

REMIGIO S. ONG vs. PEOPLE and COURT OF APPEALS, [G.R. No. 139006. November 27, 2000]

4
 o What the law punishes is the issuance of a bouncing check, not the purpose for which it
was issued nor the terms and conditions relating to its issuance. The mere act of issuing
a worthless check is malum prohibitum.
o The gravamen of the offense punished by B.P. 22 is the act of making and issuing a
worthless check or a check that is dishonored upon its presentation for payment. It is not
the non-payment of an obligation which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under
pain of penal sanctions, the making of worthless checks and putting them in circulation.
o Petitioner's argument that the subject check was issued without consideration is
inconsequential. The law invariably declares the mere act of issuing a worthless check as
malum prohibitum.

THAT ACCOMMODATION OR GUARANTEE IS A DEFENSE, REVERSED BY MINISTRY CIRCULAR NO.
12 DATED AUGUST, 1984. :

The petitioner admits that the checks he issued were dishonored. His main defense as to the
dishonored checks is that they were issued not for value but for accommodation or guarantee
and invokes our ruling in Magno vs. Court of Appeals, where we held that there was no violation
of B.P. Blg. 22 where the bounced check was issued to cover a required warranty deposit. He
also cites Ministry Circular No. 4 issued by the Department of Justice (DOJ) on 15 December
1981, the pertinent portion of which reads: 2.3.4. Where issuance of bouncing check is neither
estafa nor violation of B.P. Blg. 22. Where the check is issued as part of an arrangement to
guarantee or secure the payment of the obligation, whether pre-existing or not, the drawer is
not criminally liable for either estafa or violation of B. P. Blg. 22.

It was subsequently reversed by Ministry Circular No. 12 issued on 8 August 1984, which
admitted its misinterpretation of B.P. Blg. 22. The pertinent portion of the latter
reads: Henceforth, conforming with the rule that an administrative agency having interpreting
authority may reverse its administrative interpretation of a statute, but that its new
interpretation applies only prospectively (Waterbury Savings Bank vs. Danaher, 128 Conn. 476;
20 a2d 455 [1941]), in all cases involving violation of Batas Pambansa Blg. 22 where the check in
question is issued after this date, the claim that the check is issued as a guarantee or part of an
arrangement to secure an obligation or to facilitate collection will no longer be considered as a
valid defense.

EVANGELINE CABRERA vs. PEOPLE, [G.R. No. 150618. July 24, 2003]

In order to create the prima facie presumption, that the issuer knew of the insufficiency of funds,
it must be shown that he or she received a notice of dishonor and within five banking days
thereafter, failed to satisfy the amount of the check or shall arrange for its payment. The
prosecution is burdened to prove the acts that gave rise to the prima facie presumption. On the
other hand, the drawer has the right to adduce evidence to rebut the same. It is important to
stress that this presumption is not conclusive, or one that forecloses or precludes the
presentation of evidence to the contrary. Thus, the drawer of the check can still overturn the

5
prima facie presumption by proving that the holder thereof was paid the amount due thereon,
or that arrangements were made for payment in full by the drawee of the check within five
banking days after receipt of notice that such check has not been paid by the drawee bank.

While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing,
taken in conjunction, however, with Section 3 of the law, i.e., “that where there are no sufficient
funds in or credit with such drawee bank, `such fact shall always be explicitly stated in the notice
of dishonor or refusal,” a mere oral notice or demand to pay would appear to be insufficient for
conviction under the law. The Court is convinced that both the spirit and letter of the Bouncing
Checks Law would require for the act to be punished thereunder not only that the accused
issued a check that is dishonored, but that likewise the accused has actually been notified in
writing of the fact of dishonor. The consistent rule is that penal statutes have to be construed
strictly against the State and liberally in favor of the accused.

It is not enough for the prosecution to prove that a notice of dishonor was sent to the drawee of
the check. It must also show that the drawer of the check received the said notice because the
fact of service provided for in the law is reckoned from receipt of such notice of dishonor by the
drawee of the check.

6
RA 10175

RA 10175 – AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION
AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES

CYBERCRIME OFFENCES: (Section 4)

A. Offenses against the confidentiality, integrity and availability of computer data and systems:

1. Illegal Access – The access to the whole or any part of a computer system without right.

Access refers to the instruction, communication with, storing data in, retrieving data from, or
otherwise making use of any resources of a computer system or communication network.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus

THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

Petitioners contend that Section 4 (a) (1) fails to meet the strict scrutiny
standard required of laws that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct, 1 useful in determining the constitutionality of
laws that tend to target a class of things or persons. According to this
standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed unconstitutional. The burden
is on the government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least restrictive means
to protect such interest. 2 Later, the strict scrutiny standard was used to
assess the validity of laws dealing with the regulation of speech, gender,
or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection. 3 CAIaDT
In the cases before it, the Court finds nothing in Section 4 (a) (1) that calls
for the application of the strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing what is essentially a
condemnable act — accessing the computer system of another without
right. It is a universally condemned conduct. 4
Petitioners of course fear that this section will jeopardize the work of
ethical hackers, professionals who employ tools and techniques used by
criminal hackers but would neither damage the target systems nor steal
information. Ethical hackers evaluate the target system's security and
report back to the owners the vulnerabilities they found in it and give
 instructions for how these can be remedied. Ethical hackers are the
equivalent of independent auditors who come into an organization to
verify its bookkeeping records. 5
Besides, a client's engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the "get out of jail free
card." 6 Since the ethical hacker does his job with prior permission from
the client, such permission would insulate him from the coverage of
Section 4 (a) (1).
2. Illegal Interception – The interception made by technical means without right of any non-public
transmission of computer data to, from, or within a computer system including electromagnetic
emissions from a computer system carrying such computer data.

Interception refers to listening to, recording, monitoring or surveillance of the content of
communications, including procuring of the content of data, either directly, through access and
use of a computer system or indirectly, through the use of electronic eavesdropping or tapping
devices, at the same time that the communication is occurring.

3. Data Interference — The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus
THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

Petitioners claim that Section 4 (a) (3) suffers from overbreadth in that,
while it seeks to discourage data interference, it intrudes into the area of
protected speech and expression, creating a chilling and deterrent effect
on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms. 7 But Section 4 (a) (3) does not encroach on these
freedoms at all. It simply punishes what essentially is a form of
vandalism, 8 the act of willfully destroying without right the things that
belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other people's computer
systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect 9 or the fear of possible prosecution that
hangs on the heads of citizens who are minded to step beyond the
boundaries of what is proper. But to prevent the State from legislating
criminal laws because they instill such kind of fear is to render the state
powerless in addressing and penalizing socially harmful conduct. 10 Here,
the chilling effect that results in paralysis is an illusion since Section 4 (a)
(3) clearly describes the evil that it seeks to punish and creates no
tendency to intimidate the free exercise of one's constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden
of proving that under no set of circumstances will Section 4 (a) (3) be
valid. 11Petitioner has failed to discharge this burden.

4. System Interference — The intentional alteration or reckless
hindering or interference with the functioning of a computer or
computer network by inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing computer data or program,
electronic document, or electronic data message, without right or
authority, including the introduction or transmission of viruses.

Petitioners claim that Section 4 (a) (3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms. 7 But Section 4 (a) (3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism, 8 the act of willfully
destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has
no connection to guaranteed freedoms. There is no freedom to destroy other
people's computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect,
an in terrorem effect 9 or the fear of possible prosecution that hangs on the heads
of citizens who are minded to step beyond the boundaries of what is proper. But
to prevent the State from legislating criminal laws because they instill such kind
of fear is to render the state powerless in addressing and penalizing socially
harmful conduct. 10 Here, the chilling effect that results in paralysis is an illusion
since Section 4 (a) (3) clearly describes the evil that it seeks to punish and creates
no tendency to intimidate the free exercise of one's constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4 (a) (3) be
valid. 11Petitioner has failed to discharge this burden.

5. System Interference — The intentional alteration or reckless hindering or interference with the
functioning of a computer or computer network by inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing computer data or program, electronic document, or
electronic data message, without right or authority, including the introduction or transmission of
viruses.

Alteration refers to the modification or change, in form or substance, of an existing computer data
or program.

6. Cyber-squatting – The acquisition of a domain name over the internet in bad faith to profit, mislead,
destroy reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration:
(i) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and
(ii) Acquired without right or with intellectual property interests in it.

A domain name is your website name. A domain name is the address where Internet
users can access your website. A domain name is used for finding and identifying
computers on the Internet. Computers use IP addresses, which are a series of number.
However, it is difficult for humans to remember strings of numbers. Because of this,
domain names were developed and used to identify entities on the Internet rather than
using IP addresses.

A domain name can be any combination of letters and numbers, and it can be used in
combination of the various domain name extensions, such as .com, .net and more.

The domain name must be registered before you can use it. Every domain name is
unique. No two websites can have the same domain name. If someone types
in www.yourdomain.com, it will go to your website and no one else's.

The price of a domain name typically runs between $15-25 per year.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus

THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

Petitioners claim that Section 4 (a) (6) or cyber-squatting violates the equal
protection clause 12 in that, not being narrowly tailored, it will cause a
user using his real name to suffer the same fate as those who use aliases
or take the name of another in satire, parody, or any other literary device.
 For example, supposing there exists a well known billionaire-philanthropist
named "Julio Gandolfo," the law would punish for cyber-squatting both
the person who registers such name because he claims it to be his pseudo-
name and another who registers the name because it happens to be his
real name. Petitioners claim that, considering the substantial distinction
between the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which
happens to be his real name or use it as a pseudo-name for it is the evil
purpose for which he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain name in bad faith
to profit, mislead, destroy reputation, or deprive others who are not ill-
motivated of the rightful opportunity of registering the same. The
challenge to the constitutionality of Section 4 (a) (6) on ground of denial
of equal protection is baseless.

B. Computer-related offenses:

1. Computer-related Forgery

(i) The input, alteration, or deletion of any computer data without right resulting in
inauthentic data with the intent that it be considered or acted upon for legal
purposes as if it were authentic, regardless whether or not the data is directly
readable and intelligible;
(ii) The act of knowingly using computer data which is the product of computer-related
forgery as defined herein, for the purpose of perpetuating a fraudulent or
dishonest design.

2. Computer-related Fraud — The unauthorized input, alteration, or deletion of computer data or
program or interference in the functioning of a computer system, causing damage thereby with
fraudulent intent: Provided, that if no damage has yet been caused, the penalty imposable shall be
one (1) degree lower.

When a perpetrator alters documents stored in computerized form, the

crime committed may be forgery. In this instance, computer systems are
the target of criminal activity.

Computers, however, can also be used as instruments with which to
commit forgery. A new generation of fraudulent alteration or
counterfeiting emerged when computerized color laser copiers became
available. These copiers are capable of high-resolution copying,
modification of documents, and even the creation of false documents
without benefit of an original, and they produce documents whose
 quality is indistinguishable from that of authentic documents except by
an expert.

These schemes take very little computer knowledge to perpetrate.
Counterfeit checks, invoices and stationery can be produced using
scanners, color printers, and graphics software. Such forgeries are
difficult to detect for the untrained eye.

3. Computer-related Identity Theft – The intentional acquisition, use, misuse, transfer, possession,
alteration or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided, that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus
THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

Petitioners claim that Section 4 (b) (3) violates the constitutional rights to
due process and to privacy and correspondence, and transgresses the
freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee
against unreasonable searches and seizures. 13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc, 14 it ruled
that the right to privacy exists independently of its identification with
liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as
the "Zones of Privacy." The Court explained in "In the Matter of the Petition
for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws.
Within these zones, any form of intrusion is impermissible
unless excused by law and in accordance with customary
legal process. The meticulous regard we accord to these
zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of
the law against such interference or attacks." AaECSH
 Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches 16 and seizures, which is the basis of the
right to be let alone, and (b) the right to privacy of communication and
correspondence. 17
In assessing the challenge that the State has impermissibly intruded into
these zones of privacy, a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18
The usual identifying information regarding a person includes his name,
his citizenship, his residence address, his contact number, his place and
date of birth, the name of his spouse if any, his occupation, and similar
data. 19 The law punishes those who acquire or use such identifying
information without right, implicitly to cause damage. Petitioners simply
fail to show how government effort to curb computer-related identity
theft violates the right to privacy and correspondence as well as the right
to due process of law.
Also, the charge of invalidity of this section based on the overbreadth
doctrine will not hold water since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech. Clearly, what this section
regulates are specific actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no fundamental right to
acquire another's personal data.
Further, petitioners fear that Section 4 (b) (3) violates the freedom of the
press in that journalists would be hindered from accessing the unrestricted
user account of a person in the news to secure information about him that
could be published. But this is not the essence of identity theft that
the law seeks to prohibit and punish. Evidently, the theft of identity
information must be intended for an illegitimate purpose. Moreover,
acquiring and disseminating information made public by the user himself
cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be
presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the
part of the perpetrator. 20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this
Section.

C. Content-related offenses:

1. Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus

THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

Petitioners claim that the above violates the freedom of expression clause of
the Constitution. 21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or conceded," or "a token
of love (as a ribbon) usually worn conspicuously." 22 This meaning given to the
term "favor" embraces socially tolerated trysts. The law as written would
invite law enforcement agencies into the bedrooms of married couples or
consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of
the Cybercrime Prevention Act give a proper perspective on the issue. These
deliberations show a lack of intent to penalize a "private showing . . . between
and among two private persons . . . although that may be a form of obscenity to
some." 23 The understanding of those who drew up the cybercrime law is that
the element of "engaging in a business" is necessary to constitute the illegal
cybersex. 24 The Act actually seeks to punish cyber prostitution, white slave
trade, and pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam. 25

The subject of Section 4 (c) (1) — lascivious exhibition of sexual organs or sexual
activity — is not novel. Article 201 of the RPC punishes "obscene publications and
exhibitions and indecent shows." The Anti-Trafficking in Persons Act of
2003 penalizes those who "maintain or hire a person to engage in prostitution or
pornography." 26 The law defines prostitution as any act, transaction, scheme,
or design involving the use of a person by another, for sexual intercourse or
lascivious conduct in exchange for money, profit, or any other consideration. 27

The case of Nogales v. People 28 shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust,
or pornography. 29 The Court weighed the property rights of individuals against
the public welfare. Private property, if containing pornographic materials, may be
forfeited and destroyed. Likewise, engaging in sexual acts privately through
Internet connection, perceived by some as a right, has to be balanced with the
mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity. 30 The Court will not declare Section 4 (c)
(1) unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating, directly
or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.

2. Child Pornography — The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided,
That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic
Act No. 9775.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus
THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 2009 31 (ACPA) to cover identical activities in
cyberspace. In theory, nothing prevents the government from invoking
the ACPA when prosecuting persons who commit child pornography using
a computer system. Actually, ACPA's definition of child pornography
already embraces the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Notably, no one has questioned
this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime
is committed in cyberspace. But no one can complain since the intensity
or duration of penalty is a legislative prerogative and there is rational basis
for such higher penalty. 32 The potential for uncontrolled proliferation of
a particular piece of child pornography when uploaded in the cyberspace
is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for
any person to "produce, direct, manufacture or create any form of child
pornography" 33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish. 34 Petitioners are wary
that a person who merely doodles on paper and imagines a sexual abuse
of a 16-year-old is not criminally liable for producing child pornography but
one who formulates the idea on his laptop would be. Further, if the author
bounces off his ideas on Twitter, anyone who replies to the tweet could
be considered aiding and abetting a cybercrime.
 The question of aiding and abetting the offense by simply commenting on
it will be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4 (c) (2) is not successfully challenged.
3. Unsolicited Commercial Communications — The transmission of commercial electronic
communication with the use of computer system which seek to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements
from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject. receipt of further commercial electronic messages (opt-out)
from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of
the electronic message; and
(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus
THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

The above penalizes the transmission of unsolicited commercial

communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the
same sentence or comment was said to be making a "spam." The term
referred to a Monty Python's Flying Circus scene in which actors would
keep saying "Spam, Spam, Spam, and Spam" when reading options from a
menu. 35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that
wastes the storage and network capacities of internet service providers,
reduces the efficiency of commerce and technology, and interferes with
the owner's peaceful enjoyment of his property. Transmitting spams
amounts to trespass to one's privacy since the person sending out spams
enters the recipient's domain without prior permission. The OSG contends
that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people,
before the arrival of the age of computers, have already been receiving
such unsolicited ads by mail. These have never been outlawed as nuisance
 since people might have interest in such ads. What matters is that the
recipient has the option of not opening or reading these mail ads. That is
true with spams. Their recipients always have the option to delete or not
to read them.
To prohibit the transmission of unsolicited ads would deny a person the
right to read his emails, even unsolicited commercial ads addressed to
him. Commercial speech is a separate category of speech which is not
accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless
entitled to protection. 36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression.
Unsolicited advertisements are legitimate forms of expression.
4. Libel — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be
devised in the future.

Communication refers to the transmission of information through ICT media, including voice, video
and other forms of data.

Computer system refers to any device or group of interconnected or related devices, one or more
of which, pursuant to a program, performs automated processing of data. It covers any type of
device with data processing capabilities including, but not limited to, computers and mobile
phones. The device consisting of hardware and software may include input, output and storage
components which may stand alone or be connected in a network or other similar devices. It also
includes computer data storage devices or media.

Article 353. Definition of libel. — A libel is public and malicious imputation of a crime, or
of a vice or defect, real or imaginary, or any act, omission, condition, status or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of
any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
JOSE JESUS M. DISINI, JR., ET. AL. vsersus
THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

Petitioners lament that libel provisions of the penal code 37 and, in effect,
the libel provisions of the cybercrime law carry with them the requirement
of "presumed malice" even when the latest jurisprudence already replaces
it with the higher standard of "actual malice" as a basis for
conviction. 38 Petitioners argue that inferring "presumed malice" from the
accused's defamatory statement by virtue of Article 354 of the penal
code infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should
be stricken down as unconstitutional for otherwise good jurisprudence
requiring "actual malice" could easily be overturned as the Court has done
in Fermin v. People 39 even where the offended parties happened to be
public figures.
The elements of libel are: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of
the person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact 41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not. 42 The reckless disregard standard
used here requires a high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion that the accused in
fact entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to establish
actual malice. 43
The prosecution bears the burden of proving the presence of actual malice
in instances where such element is required to establish guilt. The defense
of absence of actual malice, even when the statement turns out to be
false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the
Executive Director, First National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime law, mainly target libel
against private persons, the Court recognizes that these laws imply a
stricter standard of "malice" to convict the author of a defamatory
statement where the offended party is a public figure. Society's interest
and the maintenance of good government demand a full discussion of
public affairs. 44 CSAcTa
Parenthetically, the Court cannot accept the proposition that its ruling
in Fermin disregarded the higher standard of actual malice or malice in fact
when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the
presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the
motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a
general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law,the article being
malicious in itself, but there was also malice in fact,as there
was motive to talk ill against complainants during the
electoral campaign. (Emphasis ours) SIaHTD
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine
of P6,000.00.
But, where the offended party is a private individual, the prosecution need
not prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed
statement. 45 For his defense, the accused must show that he has a
justifiable reason for the defamatory statement even if it was in fact
true. 46
Petitioners peddle the view that both the penal code and
the Cybercrime Prevention Act violate the country's obligations under the
International Covenant of Civil and Political Rights (ICCPR). They point out
that in Adonis v. Republic of the Philippines, 47 the United Nations Human
Rights Committee (UNHRC) cited its General Comment 34 to the effect
that penal defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and
for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution
for libel, the truth may be given in evidence to the court and
if it appears that the matter charged as libelous is true, and,
moreover, that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the
imputation shall have been made against Government
 employees with respect to facts related to the discharge of
their official duties.
In such cases if the defendant proves the truth of the
imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle freedom of
expression. 48 Indeed, the ICCPR states that although everyone should
enjoy freedom of expression, its exercise carries with it special duties and
responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law. 49
The Court agrees with the Solicitor General that libel is not a
constitutionally protected speech and that the government has an
obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to Article
355 of the penal code, already punishes it. In effect, Section 4 (c) (4) above
merely affirms that online defamation constitutes "similar means" for
committing libel.
But the Court's acquiescence goes only insofar as
the cybercrime law penalizes the author of the libelous statement or
article. Cyberlibel brings with it certain intricacies, unheard of when
the penal code provisions on libel were enacted. The culture associated
with internet media is distinct from that of print. DaScCH
The internet is characterized as encouraging a freewheeling, anything-
goes writing style. 50 In a sense, they are a world apart in terms of
quickness of the reader's reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the
networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these
reactions to defamatory statement posted on the internet constitute
aiding and abetting libel, acts that Section 5 of
the cybercrime law punishes, is another matter that the Court will deal
with next in relation to Section 5 of the law.

OTHER OFFENSES (Section 5)

A. Aiding or Abetting in the Commission of Cybercrime – Any person who willfully abets or aids
in the commission of any of the offenses enumerated in this Act shall be held liable.

Aiding and abetting is a crime in itself, held against those who would somehow assist a
criminal – short of physically contributing to the illegal act.
 Aiding is assisting, supporting, or helping another to commit a crime.
Abetting is encouraging, inciting, or inducing another to commit a crime.
Aiding and abetting is a term often used to describe a single act.

B. Attempt in the Commission of Cybercrime — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

JOSE JESUS M. DISINI, JR., ET. AL. vsersus
THE SECRETARY OF JUSTICE, ET. AL.
[G.R. No. 203335. February 18, 2014.]

Petitioners assail the constitutionality of Section 5 that renders criminally

liable any person who willfully abets or aids in the commission or attempts
to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected
expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the
freedom of expression of "netizens," the multitude that avail themselves
of the services of the internet. He points out that existing laws and
jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to
guide law enforcement agencies in enforcing the law. 51 The legislature is
not required to define every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a
forest, 52smuggling merchandise into the country, 53 or interfering in the
peaceful picketing of laborers, 54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of
aiding or abetting lend themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the waters are muddier and
the line of sight is somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore popular and unchallenged
dogmas of cyberspace use. ScaHDT
According to the 2011 Southeast Asia Digital Consumer Report, 33% of
Filipinos have accessed the internet within a year, translating to about 31
million users. 55 Based on a recent survey, the Philippines ranks 6th in the
top 10 most engaged countries for social networking. 56 Social networking
sites build social relations among people who, for example, share
interests, activities, backgrounds, or real-life connections. 57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch. 58 Users register at this site, create a personal profile or an open
book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile. 59 A user
can post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user's privacy settings. acIHDA
If the post is made available to the public, meaning to everyone and not
only to his friends, anyone on Facebook can react to the posting, clicking
any of several buttons of preferences on the program's screen such as
"Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views
about the same, such as "This is great!" When a Facebook user "Shares" a
posting, the original "posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read short text-
based messages of up to 140 characters. These are known as "Tweets."
Microblogging is the practice of posting small pieces of digital content —
which could be in the form of text, pictures, links, short videos, or other
media — on the internet. Instead of friends, a Twitter user has "Followers,"
those who subscribe to this particular user's posts, enabling them to read
the same, and "Following," those whom this particular user is subscribed
to, enabling him to read their posts. Like Facebook, a Twitter user can
make his tweets available only to his Followers, or to the general public. If
a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person's
tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates
the assailed statement; b) the blog service provider like Yahoo; c) the
internet service provider like PLDT, Smart, Globe, or Sun; d) the internet
cafe that may have provided the computer used for posting the blog; e)
the person who makes a favorable comment on the blog; and f) the person
who posts a link to the blog site. 60 Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service provider). She needs the
internet to access her blog so she subscribes to Sun Broadband (Internet
Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of
Maria's friends who sees this post, comments online, "Yes, this is so true!
They are so immoral." Maria's original post is then multiplied by her friends
and the latter's friends, and down the line to friends of friends almost ad
infinitum.Nena, who is a stranger to both Maria and Linda, comes across
this blog, finds it interesting and so shares the link to this apparently
defamatory blog on her Twitter account. Nena's "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person's "Retweet" of
Nena's original tweet and posts this on her Facebook account.
Immediately, Pamela's Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share
button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded
as "aiding or abetting?" In libel in the physical world, if Nestor places on
the office bulletin board a small poster that says, "Armand is a thief!," he
could certainly be charged with libel. If Roger, seeing the poster, writes on
it, "I like this!," that could not be libel since he did not author the poster.
If Arthur, passing by and noticing the poster, writes on it, "Correct!," would
that be libel? No, for he merely expresses agreement with the statement
on the poster. He still is not its author. Besides, it is not clear if aiding or
abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers, availing
themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those
who pressed Like, Comment and Share) are essentially knee-jerk
sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting?
And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to
be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on
the millions that use this new medium of communication in violation of
their constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union, 61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of "obscene or
indecent" communications to any recipient under 18 years of age; and (2)
the knowing use of an interactive computer service to send to a specific
person or persons under 18 years of age or to display in a manner available
to a person under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by contemporary
community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment's guarantee of freedom of speech for being overbroad. The
U.S. Supreme Court agreed and ruled: SIAEHC
The vagueness of the Communications Decency Act of 1996
(CDA),47 U.S.C.S. §223, is a matter of special concern for
two reasons. First, the CDA is a content-based regulation of
speech. The vagueness of such a regulation raises special
U.S. Const.amend. I concerns because of its obvious chilling
effect on free speech.Second, the CDA is a criminal statute.
In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties
including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause
speakers to remain silent rather than communicate even
arguably unlawful words, ideas, and images.As a practical
matter, this increased deterrent effect, coupled with the risk
of discriminatory enforcement of vague regulations, poses
greater U.S. Const.amend. I concerns than those implicated
by certain civil regulations.
xxx xxx xxx
The Communications Decency Act of 1996 (CDA),47 U.S.C.S.
§ 223, presents a great threat of censoring speech that, in
fact, falls outside the statute's scope. Given the vague
contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled
to constitutional protection.That danger provides further
reason for insisting that the statute not be overly broad. The
CDA's burden on protected speech cannot be justified if it
could be avoided by a more carefully drafted
statute.(Emphasis ours)
Libel in the cyberspace can of course stain a person's image with just one
click of the mouse. Scurrilous statements can spread and travel fast across
the globe like bad news. Moreover, cyberlibel often goes hand in hand
with cyberbullying that oppresses the victim, his relatives, and friends,
evoking from mild to disastrous reactions. Still, a governmental purpose,
which seeks to regulate the use of this cyberspace communication
technology to protect a person's reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly sweep, invading the area
of protected freedoms. 62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust
discussion of public issues. Democracy will be threatened and with it, all
liberties. Penal laws should provide reasonably clear guidelines
for law enforcement officials and triers of facts to prevent arbitrary and
discriminatory enforcement. 63 The terms "aiding or abetting" constitute
broad sweep that generates chilling effect on those who express
themselves through cyberspace posts, comments, and other
messages. 64 Hence, Section 5 of the cybercrime law that punishes "aiding
or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice
Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections, 65"we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal
statutes as appropriate only insofar as these doctrines are used to mount
'facial' challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground — absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth,
or vagueness. Here, one can challenge the constitutionality of a statute
only if he asserts a violation of his own rights. It prohibits one from
assailing the constitutionality of the statute based solely on the violation
of the rights of third persons not before the court. This rule is also known
as the prohibition against third-party standing. 66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free
speech on grounds of overbreadth or vagueness of the statute. The
rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does
not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into
silence. 67
As already stated, the cyberspace is an incomparable, pervasive medium
of communication. It is inevitable that any government threat of
punishment regarding certain uses of the medium creates a chilling effect
on the constitutionally-protected freedom of expression of the great
masses that use it. In this case, the particularly complex web of interaction
on social media websites would give law enforcers such latitude that they
could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a
posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When
a case is filed, how will the court ascertain whether or not one netizen's
comment aided and abetted a cybercrime while another comment did
not?
Of course, if the "Comment" does not merely react to the original posting
but creates an altogether new defamatory story against Armand like "He
beats his wife and children," then that should be considered an original
posting published on the internet. Both the penal code and
the cybercrime law clearly punish authors of defamatory publications.
Make no mistake, libel destroys reputations that society values. Allowed
to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or
economic groups, races, or religions, exacerbating existing tension in their
relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child
pornography," does this make Google and its users ciders and abettors in
the commission of child pornography crimes? 68 Byars highlights a feature
in the American law on child pornography that the Cybercrimes law lacks
— the exemption of a provider or notably a plain user of interactive
computer service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall
be treated as the publisher or speaker of any information
provided by another information content provider and
cannot be held civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of material that
the provider or user considers to be obscene ...whether or
not such material is constitutionally protected. 69
When a person replies to a Tweet containing child pornography, he
effectively republishes it whether wittingly or unwittingly. Does this make
him a willing accomplice to the distribution of child pornography? When a
user downloads the Facebook mobile application, the user may give
consent to Facebook to access his contact details. In this way, certain
information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this
information. 70 As the source of this information, is the user aiding the
distribution of this communication? The legislature needs to address this
clearly to relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4 (c) (4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious
chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy
way. What is more, as the petitioners point out, formal crimes such as libel
are not punishable unless consummated. 71 In the absence of legislation
tracing the interaction of netizens and their level of responsibility such as
in other countries, Section 5, in relation to Section 4 (c) (4) on Libel, Section
4 (c) (3) on Unsolicited Commercial Communications, and Section 4 (c) (2)
on Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4 (a) (1) on Illegal Access,
Section 4 (a) (2) on Illegal Interception, Section 4 (a) (3) on Data
Interference, Section 4 (a) (4) on System Interference, Section 4 (a) (5) on
Misuse of Devices, Section 4 (a) (6) on Cyber-squatting, Section 4 (b) (1) on
Computer-related Forgery, Section 4 (b) (2) on Computer-related Fraud,
Section 4 (b) (3) on Computer-related Identity Theft, and Section 4 (c) (1)
on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all
that is necessary to illegally access another party's computer system but
the security employed by the system's lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and
passwords of others but fail to use these because the system supervisor is
alerted. 72 If Section 5 that punishes any person who willfully attempts to
commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking.
But this is not right. The hacker should not be freed from liability simply
because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could
cover the innocent. 73 While this may be true with respect to cybercrimes
 that tend to sneak past the area of free expression, any attempt to commit
the other acts specified in Section 4 (a) (1), Section 4 (a) (2), Section 4 (a)
(3), Section 4 (a) (4), Section 4 (a) (5), Section 4 (a) (6), Section 4 (b) (1),
Section 4 (b) (2), Section 4 (b) (3), and Section 4 (c) (1) as well as the actors
aiding and abetting the commission of such acts can be identified with
some reasonable certainty through adroit tracking of their works. Absent
concrete proof of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1) degree higher than
that provided for by the Revised Penal Code, as amended, and special laws, as
the case may be. TcSAaH
Section 6 merely makes commission of existing crimes through the Internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar
crimes committed using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater harm. The distinction,
therefore, creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code,
as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single
set of acts may be prosecuted and penalized simultaneously under two laws, a special law and
the Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does
not bar prosecution of the other although both offenses arise from the same fact, if each crime
involves some important act which is not an essential element of the other. 74 With the exception
of the crimes of online libel and online child pornography, the Court would rather leave the
determination of the correct application of Section 7 to actual cases. SCIAaT
Online libel is different. There should be no question that if the published material on print, said
to be libelous, is again posted online or vice versa, that identical material cannot be the subject of
two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and
the other a violation of Section 4 (c) (4) of R.A. 10175 involve essentially the same elements and
are in fact one and the same offense. Indeed, the OSG itself claims that online libel under Section
4 (c) (4) is not a new crime but is one already punished under Article 353. Section 4 (c) (4) merely
establishes the computer system as another means of publication. 75 Charging the offender under
both laws would be a blatant violation of the proscription against double jeopardy. 76
The same is true with child pornography committed online. Section 4 (c) (2) merely expands
the ACPA's scope so as to include identical activities in cyberspace. As previously discussed, ACPA's
definition of child pornography in fact already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus, charging the offender under both Section 4 (c) (2)
and ACPA would likewise be tantamount to a violation of the constitutional prohibition against
double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage
incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount commensurate to the damage incurred
or both, shall be imposed. aESIDH
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine
of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One
million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic
Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the
penalty to be imposed shall be one (1) degree higher than that provided for
in Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at least
Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty
thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5
shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand
 pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos
(PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4 (a) on Offenses Against
the Confidentiality, Integrity and Availability of Computer Data and Systems; 4 (b) on Computer-
related Offenses; 4 (a) (5) on Misuse of Devices; when the crime punishable under 4 (a) is
committed against critical infrastructure; 4 (c) (1) on Cybersex; 4 (c) (2) on Child Pornography; 4
(c) (3) on Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting, and
Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative.
Here the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be punished. The power to
determine penalties for offenses is not diluted or improperly wielded simply because at some prior
time the act or omission was but an element of another offense or might just have been connected
with another crime. 77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative department. The courts
should not encroach on this prerogative of the lawmaking body. 78
Section 12 of the Cybercrime Law
Section 12 provides: cACDaH
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities,
with due cause, shall be authorized to collect or record by technical or electronic
means traffic data in real-time associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communication's origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there are
reasonable grounds to believe that any of the crimes enumerated hereinabove
has been committed, or is being committed, or is about to be committed; (2) that
there are reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic
data in real time as tending to curtail civil liberties or provide opportunities for official abuse. They
claim that data showing where digital messages come from, what kind they are, and where they
are destined need not be incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to privacy and to be protected from
government snooping into the messages or information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that
such requirement has a rational relation to the purpose of the law, 79 that there is a compelling
State interest behind the law, and that the provision itself is narrowly drawn. 80 In assessing
regulations affecting privacy rights, courts should balance the legitimate concerns of the State
against constitutional guarantees. 81 DEICHc
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good. 82 To do this, it is within
the realm of reason that the government should be able to monitor traffic data to enhance its
ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims
to provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries
to adopt legislative measures to empower state authorities to collect or record "traffic data, in real
time, associated with specified communications." 83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday's traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for
that purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system
without right, 84 transmitting viruses, 85 lasciviously exhibiting sexual organs or sexual activity for
favor or consideration; 86 and producing child pornography 87 could easily evade detection and
prosecution by simply moving the physical location of their computers or laptops from day to day.
In this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet
cafés, from kindred places that provide free internet services, and from unregistered mobile
internet connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located nor identified.
There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law enforcement authorities regarding
their places of operations. Evidently, it is only real-time traffic data collection or recording and a
subsequent recourse to court-issued search and seizure warrant that can succeed in ferreting
them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people's right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain
constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to
be left alone has been regarded as the beginning of all freedoms. 89
But that right is not unqualified. In Whalen v. Roe, 90 the United States Supreme Court classified
privacy into two categories: decisional privacy and informational privacy. Decisional privacy
involves the right to independence in making certain important decisions, while informational
privacy refers to the interest in avoiding disclosure of personal matters. It is the latter right — the
right to informational privacy — that those who oppose government collection or recording of
traffic data in real-time seek to protect. DECcAS
Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion. 91 In determining whether or not a matter
is entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective
test, where one claiming the right must have an actual or legitimate expectation of privacy over a
certain matter. The second is an objective test, where his or her expectation of privacy must be
one society is prepared to accept as objectively reasonable. 92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners' challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general public's point of view. Without reasonable expectation
of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through
a service provider, must of necessity disclose to the latter, a third person, the traffic data needed
for connecting him to the recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his cellphone number and the
cellphone number of his recipient, accompanying the message sent. It is this information that
creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post
letters have no expectations that no one will read the information appearing outside the
envelope.
Computer data — messages of all kinds — travel across the internet in packets and in a way that
may be likened to parcels of letters or things that are sent through the posts. When data is sent
from any one source, the content is broken up into packets and around each of these packets is a
wrapper or header. This header contains the traffic data: information that tells computers where
the packet originated, what kind of data is in the packet (SMS, voice call, video, internet chat
messages, email, online browsing data, etc.), where the packet is going, and how the packet fits
together with other packets. 93 The difference is that traffic data sent through the internet at
times across the ocean do not disclose the actual names and addresses (residential or office) of
the sender and the recipient, only their coded internet protocol (IP) addresses. The packets travel
from one computer system to another where their contents are pieced back together. Section 12
does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient. ACSaHc
For example, when one calls to speak to another through his cellphone, the service provider's
communication's system will put his voice message into packets and send them to the other
person's cellphone where they are refitted together and heard. The latter's spoken reply is sent to
the caller in the same way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating electronically follow
the same basic pattern.
In Smith v. Maryland, 94 cited by the Solicitor General, the United States Supreme Court reasoned
that telephone users in the '70s must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that even if there is an
expectation that phone numbers one dials should remain private, such expectation is not one that
society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with
one another over cyberspace except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace communication. The conveyance
of this data takes them out of the private sphere, making the expectation to privacy in regard to
them an expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under surveillance. With enough traffic
data, analysts may be able to determine a person's close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the public may expect
to be disclosed, and clearly falls within matters protected by the right to privacy. But has the
procedure that Section 12 of the law provides been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by
technical or electronic means traffic data in real-time. Petitioners point out that the phrase "due
cause" has no precedent in law or jurisprudence and that whether there is due cause or not is left
to the discretion of the police. Replying to this, the Solicitor General asserts that Congress is not
required to define the meaning of every word it uses in drafting the law. ATcaEH
Indeed, courts are able to save vague provisions of law through statutory construction. But
the cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the
phrase "due cause." The Solicitor General suggests that "due cause" should mean "just reason or
motive" and "adherence to a lawful procedure." But the Court cannot draw this meaning since
Section 12 does not even bother to relate the collection of data to the probable commission of a
particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin
to the use of a general search warrant that theConstitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will
the law enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or
will it be used to build up a case against an identified suspect? Can the data be used to prevent
cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such
restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding
these data in their hands from looking into the identity of their sender or receiver and what the
data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to
extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is
the law enforcement agencies that would specify the target communications. The power is
virtually limitless, enabling law enforcement authorities to engage in "fishing expedition," choosing
whatever specified communication they want. This evidently threatens the right of individuals to
privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in
real time" because it is not possible to get a court warrant that would authorize the search of what
is akin to a "moving vehicle." But warrantless search is associated with a police officer's
determination of probable cause that a crime has been committed, that there is no opportunity
for getting a warrant, and that unless the search is immediately carried out, the thing to be
searched stands to be removed. These preconditions are not provided in Section 12. cDTIAC
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the lawcould be better served by providing
for more robust safeguards. His bare assurance that law enforcement authorities will not abuse
the provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly
drawn to preclude abuses. 95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been
consistently held by this Court to apply only to free speech cases. But Section 12 on its own neither
regulates nor punishes any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions
to monitor individuals and place them under surveillance in ways that have previously been
impractical or even impossible. "All the forces of a technological age . . . operate to narrow the
area of privacy and facilitate intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a democratic and a totalitarian
society." 96 The Court must ensure that laws seeking to take advantage of these technologies be
written with specificity and definiteness as to ensure respect for the rights that
the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and
subscriber information relating to communication services provided by a service
 provider shall be preserved for a minimum period of six (6) months from the date
of the transaction. Content data shall be similarly preserved for six (6) months
from the date of receipt of the order from law enforcement authorities requiring
its preservation.
Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by
a service provider is used as evidence in a case, the mere furnishing to such
service provider of the transmittal document to the Office of the Prosecutor shall
be deemed a notification to preserve the computer data until the termination of
the case.
The service provider ordered to preserve computer data shall keep confidential
the order and its compliance. DcCEHI
Petitioners in G.R. 203391 97 claim that Section 13 constitutes an undue deprivation of the right
to property. They liken the data preservation order that lawenforcement authorities are to issue
as a form of garnishment of personal property in civil forfeiture proceedings. Such order prevents
Internet users from accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors
or recipients and are to be considered private communications. But it is not clear that a service
provider has an obligation to indefinitely keep a copy of the same as they pass its system for the
benefit of users. By virtue of Section 13, however, the law now requires service providers to keep
traffic data and subscriber information relating to communication services for at least six months
from the date of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was
so minded. The service provider has never assumed responsibility for their loss or deletion while
in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve
on orders of law enforcement authorities are not made inaccessible to users by reason of the
issuance of such orders. The process of preserving data will not unduly hamper the normal
transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscriber's information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
investigation. ISaCTE
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners'
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the
power to issue subpoenas is not exclusively a judicial function. Executive agencies have the power
to issue subpoena as an adjunct of their investigatory powers. 98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search
and seizure warrant is properly issued, the law enforcement authorities shall
likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and: CHcESa
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the accessed
computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who
has knowledge about the functioning of the computer system and the measures
to protect and preserve the computer data therein to provide, as is reasonable,
the necessary information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time to complete
the examination of the computer data storage medium and to make a return
thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures. On its face, however, Section 15 merely enumerates the duties
of law enforcement authorities that would ensure the proper collection, preservation, and use of
computer system or data that have been seized by virtue of a court warrant. The exercise of these
duties do not pose any threat on the rights of the person from whom they were taken. Section 15
does not appear to supersede existing search and seizure rules but merely supplements
them. IcHTAa
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination,
destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this
as necessary to clear up the service provider's storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user's right against deprivation of property without due process of law.
But, as already stated, it is unclear that the user has a demandable right to require the service
provider to have that copy of the data saved indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his computer when he generated the data or
received it. He could also request the service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to computer
data: aITECA
Sec. 19. Restricting or Blocking Access to Computer Data. — When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ
shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy
itself that Section 19 indeed violates the freedom and right mentioned.
Computer data 99 may refer to entire programs or lines of code, including malware, as well as files
that contain texts, images, audio, or video recordings. Without having to go into a lengthy
discussion of property rights in the digital space, it is indisputable that computer data, produced
or created by their writers or authors may constitute personal property. Consequently, they are
protected from unreasonable searches and seizures, whether while stored in their personal
computers or in the service provider's systems. aEcADH
Section 2, Article III of the 1987 Constitution provides that the right to be secure in one's papers
and effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable. Further, it states that no search warrant shall issue except upon probable cause
to be determined personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The Department of Justice
order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates
as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech
are protected. Legislature may, within constitutional bounds, declare certain kinds of expression
as illegal. But for an executive officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that such content violates some law,
for to do so would make him judge, jury, and executioner all rolled into one. 100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free
speech are generally evaluated on one of or a combination of three tests: the dangerous tendency
doctrine, the balancing of interest test, and the clear and present danger rule. 101 Section 19,
however, merely requires that the data to be blocked be found prima facie in violation of any
provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests
mentioned above. EHSIcT
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV
hereof specifically the orders from law enforcement authorities shall be punished
as a violation of Presidential Decree No. 1829 with imprisonment of prision
correccional in its maximum period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829, 102 Section 20 necessarily incorporates elements of the offense which are defined therein.
If Congress had intended for Section 20 to constitute an offense in and of itself, it would not have
had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person
who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases
by committing any of the following acts:
 xxx xxx xxx
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26 (a) of the Cybercrime Law
Sections 24 and 26 (a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. — There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC),under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan. cEHSTC
Sec. 26. Powers and Functions. — The CICC shall have the following powers and
functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through a
computer emergency response team (CERT);....
Petitioners mainly contend that Congress invalidly delegated its power when it gave
the Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a national
cybersecurity plan without any sufficient standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has
adopted two tests: the completeness test and the sufficient standard test. Under the first test,
the law must be complete in all its terms and conditions when it leaves the legislature such that
when it reaches the delegate, the only thing he will have to do is to enforce it. The second test
mandates adequate guidelines or limitations in the law to determine the boundaries of the
delegate's authority and prevent the delegation from running riot. 103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and
implement a national cybersecurity plan. Also, contrary to the position of the petitioners,
the law gave sufficient standards for the CICC to follow when it provided a definition of
cybersecurity. CEaDAc
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber
environment and organization and user's assets. 104 This definition serves as the parameters
within which CICC should work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to
"prevent and combat such [cyber] offenses by facilitating their detection, investigation, and
prosecution at both the domestic and international levels, and by providing arrangements for fast
and reliable international cooperation." 105 This policy is clearly adopted in the interest of law and
order, which has been considered as sufficient standard. 106 Hence, Sections 24 and 26 (a) are
likewise valid.
WHEREFORE,the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4 (c) (3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in
real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice
to restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4 (a) (1) that penalizes accessing a computer system without
right;
b. Section 4 (a) (3) that penalizes data interference, including transmission
of viruses;
c. Section 4 (a) (6) that penalizes cyber-squatting or acquiring domain
name over the internet in bad faith to the prejudice of others;
d. Section 4 (b) (3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4 (c) (1) that penalizes cybersex or the lascivious exhibition of
sexual organs or sexual activity for favor or consideration;
f. Section 4 (c) (2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes
defined under the Revised Penal Code are committed with the use
of information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service
providers to preserve traffic data and subscriber information as
well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a
court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of
computer data under a court-issued warrant;
 l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding
periods; aATCDI
m. Section 20 that penalizes obstruction of justice in relation
to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and
Coordinating Center (CICC);
o. Section 26 (a) that defines the CICC's Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes
libel.
Further, the Court DECLARES: aDHCEA
1. Section 4 (c) (4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply
receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VALID and CONSTITUTIONAL only in relation to Section 4 (a) (1) on Illegal Access, Section 4 (a)
(2) on Illegal Interception, Section 4 (a) (3) on Data Interference, Section 4 (a) (4) on System
Interference, Section 4 (a) (5) on Misuse of Devices, Section 4 (a) (6) on Cyber-squatting, Section
4 (b) (1) on Computer-related Forgery, Section 4 (b) (2) on Computer-related Fraud, Section 4 (b)
(3) on Computer-related Identity Theft, and Section 4 (c) (1) on Cybersex;
but VOID and UNCONSTITUTIONAL with respect to Sections 4 (c) (2) on Child Pornography, 4 (c)
(3) on Unsolicited Commercial Communications, and 4 (c) (4) on online Libel.
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7
that authorizes prosecution of the offender under both theRevised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4 (c) (4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription against
double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under both Section 4
(c) (2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription, and, in respect to these,
is VOID and UNCONSTITUTIONAL.
SO ORDERED. SAcCIH

 Republic Act No. 10883
An Act Providing for a New Anti-Carnapping Law of the Philippines
17 July 2016

• This Act repeals Republic Act No. 6539 also known as the “Anti-Carnapping Act of 1972” (Section 22, See
Annex A)

CARNAPPING
➢ the taking of a motor vehicle belonging to another
➢ without the latter’s consent or by means of violence against or intimidation of persons, or by using
force upon things
➢ with intent to gain

NOTE: The unlawful taking of motor vehicles is now covered by the anti-carnapping law, and not by the
provisions on qualified theft or robbery. (People vs. Lobitania, G.R. No. 142380, September 5, 2002)

DEFINITION OF TERMS (Section 2)

Motor vehicle
- Any vehicle propelled by any power other than muscular power using the public highways
- EXCEPT: road rollers, trolley cars, street sweepers, sprinklers, lawn mowers, bulldozers, graders,
forklifts, amphibian trucks, and cranes if not used on public highways; vehicles which run only on
rails or tracks; and tractors, trailers and traction engines of all kinds used exclusively for
agricultural purposes.
o Trailers having any number of wheels, when propelled or intended to be propelled by
attachment to a motor vehicle, shall be classified as a separate motor vehicle with no
power rating

NOTE:

While the anti-carnapping law penalizes the unlawful taking of motor vehicles, it excepts from its
coverage certain vehicles. By implication, the theft or robbery of the foregoing vehicles would be covered
by Article 310 of the Revised Penal Code, as amended and the provisions on robbery, respectively. (People
vs. Bustinera, G.R. No. 148233, June 8, 2004)

Defacing or tampering with a serial number

- the altering, changing, erasing, replacing or scratching of the original factory inscribed serial
number on the motor vehicle engine, engine block or chassis of any motor vehicle.
o Whenever any motor vehicle is found to have a serial number on its engine, engine block
or chassis which is different from that which is listed in the records of the Bureau of
Customs for motor vehicle imported into the Philippines, that motor vehicle shall be
considered to have a defaced or tampered serial number

Dismantling
- the tearing apart, piece-by-piece or part-by-part, of a motor vehicle

1
Overhauling
- the cleaning or repairing of the whole engine of a motor vehicle by separating the motor engine
and its parts from the body of the motor vehicle

Repainting
- changing the color of a motor vehicle by means of painting. There is painting whenever the new
color of a motor vehicle is different from its color registered in the LTO

Remodeling
- the introduction of some changes in the shape or form of the body of the motor vehicle

Second hand spare parts

- the parts taken from a carnapped vehicle used in assembling another vehicle

Total wreck
- the state or status of a motor vehicle after a vehicular accident or other incident, so that it is
rendered inoperational and beyond economic repair due to the extent of damage in its body,
chassis and engine

Unlawful transfer or use of vehicle plates

- the use or transfer of a vehicle plate issued by the LTO to a certain vehicle to another vehicle.
o It is presumed illegally transferred when the motor vehicle plate does not correspond
with that as appearing in the certificate of registration of the motor vehicle to which it
was issued.

Identity transfer
- the act of transferring the engine number, chassis number, body tag number, plate number, and
any other identifying marks of a motor vehicle declared as “total wreck” or is beyond economic
repair and registers the same into another factory-made body or vehicle unit, of the same
classification, type, make or model
o Declaration is made by car insurance companies and/or law enforcement agencies after
its involvement in a vehicular accident or other incident

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PENALTIES (Section 3)

Any person who is found guilty of carnapping shall, regardless of the value of the motor vehicle
taken, be punished by:

Without violence against or Imprisonment for not less than 20

intimidation of persons, or years and 1 day but not more than
force upon things 30 years

With violence against or Imprisonment for not less than 30

intimidation of persons, or years and 1 day but not more than
force upon things 40 years

When the owner, driver, or

occupant of the carnapped
motor vehicle is killed or raped Life Imprisonment
in the commission of the
carnapping

NOTE:

The use of the words IS KILLED refers only to the consummated felony of either murder or
homicide. If attempted or frustrated murder or homicide is committed in the course of the commission
of the carnapping or on the occasion thereof, then it must be deemed to fall under the clause when the
carnapping is committed by means of violence against or intimidation of any person. (People vs. Mejia,
G.R. Nos. 118940-41. July 7, 1997)

Where the elements of carnapping are not proved, the provisions of the Anti -Carnapping Act
would cease to be applicable and the homicide or murder (if proven) would be punishable und er the
Revised Penal Code. (People vs. Ursaiz, G.R. No. 207662, April 13, 2016)

The killing (or the rape) qualifies the crime of carnapping which, for lack of specific nomenclature,
may be known as qualified carnapping or carnapping in an aggravated form…may be considered as
a single or indivisible crime or a special complex crime which, however, is not covered by Article 48 of the
Revised Penal Code. (People vs. Mejia, G.R. Nos. 118940-41. July 7, 1997)

When the penalties under the special law are different from and are without reference or relation
to those under the Revised Penal Code, there can be no suppletory effect of the rules, for the application
of penalties under the said Code or by other relevant statutory provisions are based on or appli cable only
to said rules for felonies under the Code. (People vs. Bustinera, G. R. No. 148233, June 8, 2004)

Foreign nationals convicted under the provisions of this Act shall be deported immediately after
service of sentence without further proceedings by the Bureau of Immigration. (Section 18)

3
 Any person who voluntarily gives information leading to the recovery of carnapped vehicles and
for the apprehension of the persons charged with carnapping shall be given monetary reward as the PNP
may determine…Any information given by informers shall be treated as confidential matter. (Section 19)

WHEN MAY BAIL BE DENIED? (Section 3)

When evidence of guilt is strong, bail shall be denied to any person charged with carnapping or when
the crime of carnapping is committed:

a. by criminal groups, gangs or syndicates or

b. by means of violence or intimidation of any person or persons or forced upon things ; or
c. when the owner, driver, passenger or occupant of the carnapped vehicle is killed or raped in the
course of the carnapping

NOTE:

No person charged with a capital offense or an offense punishable by reclusion perpetua or life
imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the
criminal prosecution (Section 7, Administrative Circular No. 12-94, August 16, 1994)

REGISTRATION

Original Registration of Motor Vehicles (Section 5)

Any person seeking the original registration of a motor vehicle, whether that motor vehicle is
newly assembled or rebuilt or acquired from a registered owner, shall, within one (1) week after the
completion of the assembly or rebuilding job or the acquisition thereof from the registered owner, apply
to the Philippine National Police (PNP) for the clearance of the motor vehicle for registration with the LTO.
The PNP shall, upon receipt of the application, verify if the motor vehicle or its numbered parts are in the
list of carnapped motor vehicles or stolen motor vehicle parts. If the motor vehicle or any of its numbered
parts is not in the list, the PNP shall forthwith issue a certificate of clearance. Upon presentation of the
certificate of clearance from the PNP and after verification of the registration of the motor vehicle engine,
engine block and chassis in the permanent registry of motor vehicle engine, engine block and chassis, the
LTO shall register the motor vehicle in accordance with existing laws, rules and regulations within twenty
(20) working days.

Registration of Motor Vehicle, Motor Vehicle Engine, Engine Block and Chassis (Section 6)

Within one (1) year upon approval of this Act, every owner or possessor of unregistered motor
vehicle or parts thereof in knock down condition shall register before the LTO the motor vehicle engine,
engine block and chassis in the name of the possessor or in the name of the real owner who shall be
readily available to answer any claim over the registered motor vehicle engine, engine block and chassis.
o Thereafter, all motor vehicle engines, engine blocks and chassis not registered with the
LTO shall be considered as a carnapped vehicle, an untaxed importation or coming from
illegal source and shall be confiscated in favor of the government.

4
Permanent Registry of Motor Vehicle, Motor Vehicle Engines, Engine Blocks and Chassis (Section 7)

The LTO shall keep a permanent registry of motor vehicle, motor vehicle engines, engine blocks
and chassis of all motor vehicles, specifying therein their type, make, serial numbers and stating therein
the names and addresses of their present and previous owners. Copies of the registry and of all entries
made thereon shall be furnished the PNP and all LTO regional, provincial and city branch offices:
o Provided, that all LTO regional, provincial and city offices are likewise obliged to furnish
copies of all registrations of motor vehicles to the main office and to the PNP:
o Provided, Further, That the original copy of the certificate of registration shall be given to
the registered owner, the second copy shall be retained with the LTO and the third copy
shall be submitted to the PNP.
o Moreover, it shall be unlawful for any person or employee who willfully encodes in the
registry of motor vehicles a non-existing vehicle or without history, new identity of
already existing vehicle or double/multiple registration (“KAMBAL”) of vehicle.

Registration of Sale, Transfer, Conveyance of a Motor Vehicle, Substitution or Replacement of a Motor

Vehicle Engine, Engine Block or Chassis (Section 8)

Every sale, transfer, conveyance of a motor vehicle, substitution or replacement of a motor

vehicle engine, engine block or chassis of a motor vehicle shall be registered with the LTO within twenty
(20) working days upon purchase/acquisition of a motor vehicle and substitution or replacement of a
motor vehicle engine, engine block or chassis.
o A motor vehicle, motor vehicle engine, engine block or chassis not registered with the
LTO shall be presumed as a carnapped vehicle, an untaxed imported vehicle, or a vehicle
proceeding from illegal sources unless proven otherwise and shall be confiscated in favor
of the government.

OTHER PUNISHABLE ACTS

Concealment of Carnapping (Section 4)

- Any person who conceals carnapping shall be punished with imprisonment of six (6) years up to
twelve (12) years and a fine equal to the amount of the acquisition cost of the motor vehicle,
motor vehicle engine, or any other part involved in the violation
o Provided, that if the person violating any provision of this Act is a juridical person, the
penalty herein provided shall be imposed on its president, secretary, and/or members of
the board of directors or any of its officers and employees who may have directly
participated in the violation.
o Any public official or employee who directly commits the unlawful acts defined in this Act
or is guilty of gross negligence of duty or connives with or permits the commission of any
of the said unlawful acts shall, in addition to the penalty prescribed in the preceding
paragraph, be dismissed from the service, and his/her benefits forfeited and shall be
permanently disqualified from holding public office.

5
Defacing or Tampering with Serial Numbers of Motor Vehicle Engines, Engine Blocks and Chassis
(Section 14)
- It shall be unlawful for any person to deface or otherwise tamper with the original or registered
serial number of motor vehicle engines, engine blocks and chassis.

Identity Transfer (Section 15)

- It shall be unlawful for any person, office or entity to cause and/or allow the sale, registration,
and/or transfer into another name, the chassis number, engine number and plate number of a
motor vehicle declared as “total wreck” or beyond economic repair by concerned insurance
company, and/or law enforcement agencies, due to its involveme nt in a vehicular accident or for
some other causes. The LTO shall cancel the registration of total wreck vehicle as reported by the
PNP and/or as declared by the Insurance Commission.

Transfer of Vehicle Plate (Section 16)

- It shall be unlawful for any person, office or entity to transfer or use a vehicle plate from one
vehicle to another without securing the proper authority from the LTO.

Sale of Second Hand Spare Parts (Section 17)

- It shall be unlawful for any person, office or entity to buy and/or sell any second hand spare parts
taken from a carnapped vehicle.

CASES

G.R. No. 139323. June 6, 2001

PEOPLE vs. ELLASOS

Facts:

On April 2, 1992, in the City of San Jose, Republic of the Philippines, the said accused, conspiring
together and mutually helping one another, with intent of gain and by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously take and carry away a motor tricycle
with Plate No. CV-1275 owned by and belonging to Miguel de Belen, against the will of the latter; that on
the occasion thereof and for the purposes of enabling them to take and carry away the motor tricycle
above mentioned, the accused, in pursuance of their conspiracy, with evident premeditation, and taking
advantage of their superior strength and with intent to kill, treacherously attack, assault and shoot the
aforesaid Miguel de Belen with an unlicensed firearm, thereby inflicting wounds upon the latter which
caused his instantaneous death. That as a consequence of the death of said Miguel de Belen, his heirs
sustained actual compensatory and moral damages.

Defense of the Accused:

Accused-appellant contends that the essential element of intent to gain was not proven by the
prosecution; that had the purpose of the accused been to appropriate the tricycle, they could have taken
the said vehicle to a place where it could not be easily found; that the taking of the wheel of the tricycle
can. under the circumstances, be conclusively presumed to be a mere afterthought, and if in deed a crime
has been committed it can only be theft of the wheel of the tricycle.

6
Held:

The chain of proven circumstances leads to the logical conclusion that the tricycle was unlawfully
taken by the two accused from its owner, Miguel de Belen, and the latter was killed on the occasion
thereof. Miguel was last seen with the two accused; three hours later, the two were again spotted riding
the tricycle without Miguel. The following morning, the two accused were found in possession of a wheel
of the tricycle.

Such possession, which remained without any satisfactory explanation, raises the presumption
that the two accused authored the carnapping. This presumption remains unrebutted.

That only the wheel was found in possession of the accused and was intended to be appropriated
by the latter is of no moment. The unlawful taking of the tricycle from the owner was already completed.
Besides, the accused may be held liable for the unlawful taking of the whole vehicle even if only a part
thereof is ultimately taken and/or appropriated while the rest of it is abandoned.

The crime was committed before the effectivity of R.A. 7659. Therefore, we have to apply the
original provision prescribing the penalty of "life imprisonment to death" where the "owner, driver o r
occupant of the carnapped motor vehicle is killed in the commission of the carnapping"

Intent to gain, or animus lucrandi, as an element of the crime of carnapping, is an internal act and
hence presumed from the unlawful taking of the vehicle. Unlawful taking, or apoderamiento, is the taking
of the vehicle without the consent of the owner, or by means of violence against or intimidation of
persons, or by using force upon things; it is deemed complete from the moment the offender gains
possession of the thing, even if he has no opportunity to dispose of the same

--o--

G.R. No. 130594. July 5, 2000

PEOPLE vs SIRAD

Facts:

George Lozano, the victim in this case, made a living by delivering bread around General Santos
City using a red Kawasaki motorcycle owned by his employer Aniceto Dela. In the morning of February 4,
1992, he left his house early at around 5:00 a.m. to get bread from the bakery of Aniceto Dela. He returned
to his house two hours later and after taking his breakfast, left again at past 7:00 A.M. proceeding towards
Barangay Sinawal.

At about 9:00 a.m. Martillano Lozano was picking cotton at a cotton farm in Sitio Cabuay
(Cabuway), Barangay Sinawal, General Santos City when he saw his cousin George Lozano pass by riding
his red Kawasaki motorcycle with the bread box attached at its side. At around 12:00 noon he again saw
the red motorcycle pass by, but this time it was not George who was riding the motorcycle but three men
and the bread box was no longer attached to the motorcycle. Rita Pino, a co-worker of Martillano Lozano
at the cotton farm also saw the red Kawasaki motorcycle pass by the cotton farm at aroun d noon of

7
February 4, 1992, driven by accused-appellant Akmad Sirad with the other accused-appellants Orlie Sultan
and Salik Amino riding at the back.

At around 10:00 in the evening the group of Martillano Lozano found the body of George Lozano
at the ranch of Bernardino Lozano, approximately three meters away from the road going to Barangay
Sinawal

Accused-appellants argued raise the issue of the illegality of their identification by the
prosecutions witnesses at a police line-up. According to accused-appellants, the identification was in
violation of their constitutional right to counsel because there was no counsel present at the time. Further,
they alleged that their investigation shifted from investigatory to accusatory for they were considered as
primary suspects

Held:

During the commission of the crime, which was on February 4, 1992, there was no crime
denominated as carnapping with homicide. The proper denomination for the crime is carnapping as
defined and penalized under of Republic Act No. 6539, Sections 2 and 14. Under Republic Act No. 6539,
Section 14, the penalty for carnapping in case the owner, driver or occupant of the carnapped motor
vehicle is killed in the course of the commission of the carnapping shall be reclusion perpetua to death.
Considering that at the time of the commission of the crime the death penalty was suspended, accused
are hereby sentenced to reclusion perpetua.

--o--

G.R. Nos. 118940-41. July 7, 1997

PEOPLE vs MEJIA

Facts:

In the evening of 10 March 1994, along the expressway at Barangay Ventinilla, Sta. Barbara,
Pangasinan, several persons on board a passenger jeepney driven by Teofilo Landingin attacked the latter
and a passenger, Virgilio Catugas, thereby inflicting upon them multiple stab wounds. Landingin was
pulled out from his seat and dumped on the shoulder of the road. One of the attackers took the wheel of
the jeepney and drove away. Catugas was thrown out to the middle of the road when the jeepney started
to move away. Landingin died as a consequence of the injuries he sustained. Catugas survived.

Despite service on them of subpoenas requiring submission of counter-affidavits, accused Mejia,

Benito, Paraan, and Fabito did not submit their counter-affidavits., Judge Lilia C. Espanol issued an order
declaring the accused "to have waived their right to be heard in preliminary investigation"; finding a prima
facie case against the accused; recommending that they be charged with and prosecuted for the crimes
of murder, frustrated murder, and violation of R.A. No. 6539, as amended; and ordering that the records
of the cases be forwarded to the Office of the Provincial Prosecutor for appropriate action.

8
 Held to account for the above acts were Gregorio Mejia, Edwin Benito, Pedro Paraan, Joseph
Fabito, Romulo Calimquim, one alias Dennis, Alex Mamaril, one alias Mondragon, and another
unidentified person. Mejia and Benito were taken into police custody a few hours after the incident;
Paraan, the following day; and Fabito, five days after. Calimquim was found dead three days after the
incident in question, while the others have remained at large. Three separate criminal complaints for
murder, frustrated murder, and violation of R.A. No. 6539 (Anti Carnapping Act of 1992, as ame nded)
were filed against them

Held:

The accused admitted to having flagged down and boarded Landingin's jeepney that fateful
evening of 10 March 1994, but denied having committed the crimes. They claimed that it was Romulo
Calimquim and his companions who killed Landingin, stabbed Catugas, and drove away the jeepney.

The latter makes clear the intention of the law to make the offense a special complex crime, by
way of analogy vis-a-vis paragraphs 1 to 4 of Article 294 of the Revised Penal Code on robbery with
violence against or intimidation of persons. As such, the killing (or the rape) merely qualifies the crime of
carnapping which for lack of specific nomenclature may be known as qualified carnapping or carnapping
in an aggravated form . In short, considering the phraseology of the amended Section 14, the carnapping
and the killing (or the rape) may be considered as a single or indivisible crime or a special complex crime
which, however, is not covered by Article 48 of the Revised Penal Code.

It follows then that the killing of the driver, Teofilo Landingin — whether it be homicide or murder
— cannot be treated as a separate offense, but should only be considered to qualify the crime of
carnapping.

If attempted or frustrated murder or homicide is committed "in the course of the commission of
the carnapping or on the occasion thereof," then it must be deemed to fall under the clause (of Section
14) "when the carnapping is committed by means of violence against or intimidation of any person."

The evidence adduced by the prosecution has established beyond reasonable doubt the
carnapping of Teofilo Landingin's passenger jeepney, which is a motor vehicle under the definition in
Section 2 of R.A. No. 6539. The passenger jeepney was taken, with intent of gain, from Landingin by means
of violence against him which caused his death and against a passenger, Virgilio Catugas, who suffered
physical injuries.

Unfortunately, the CASTILLO court relied heavily on the entries in the police blotters of the police
stations of Sual and Sta. Barbara. The silence of the entries on what the appellants had declared in court
is not conclusive evidence that they did not report the incident to the police authorities. They had no
participation in the preparation of the entries. Entries in the police blotters should not be given undue
significance or probative value, for they are normally incomplete and inaccurate sometimes from either
partial suggestion of for want of suggestion or inquiries.

As to the alleged participation of the appellants in the commission of the crimes, the prosecution
had to rely solely on the testimony of Virgilio Catugas. The totality of his testimony in the cases before the
LARON court leaves much to be desired. The prosecutor who conducted the di rect examination was
unable to propound sensible questions to elicit clear answers bound to reconstruct faithfully the events
surrounding the commission of the alleged crimes.

9
 Accused-appellants Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito are
ACQUITTED on the ground that their guilt therefor has not been proved beyond reasonable doubt or with
moral certainty. Their immediate release from detention is hereby ordered, unless other lawful and valid
grounds for their further detention exist.

--o--

G.R. No. 135904. January 21, 2000

PEOPLE vs TAN

Facts:

Philip See is the registered owner of a 1987 Mitsubishi Gallant four-door valued at P420,000.00,
bearing plate no. CGS-723, colored blue. Sometime in March 1992, accused Alvin Tan was introduced to
Philip by Alvin's fiancee, one Vienna Yu, and from then on, Philip and Alvin became friends and started to
see each other on several occasions thereafter.

On November 7, 1992, about 9:30 a.m., Philip together with his wife Ruby See and Robert Chua
(a neighbor) was at his place of residence when Alvin arrived thereat. He made it known to Philip that he
was intending to buy Philip's aforesaid car and that he wanted to test-drive it. On account of their
friendship and believing Alvin's assurance that he would return the car after he shall have test-driven it,
Philip granted Alvin's request xxx. On thus getting hold of the car, Alvin sped away and never returned. In
vain, Philip waited for Alvin to show up and return the car; Alvin simply did not show up, much less cause
the return of the car.

One of Alvin's employees, however, advised Philip to the effect that the car was parked and
hidden right behind Alvin's warehouse. The location of the warehouse having been given to him, Philip
went to the place and at a distance of some five feet, he saw the vehicle parked at the rear end of the
warehouse. To his shock and surprise, he saw that parts of the car, like the bumper, a door, and several
interior accessories, had been dismantled and were already missing. Worse, several pieces of wood were
piled on top of the car as if purposely hide and conceal it from view.

Philip was informed by the PNP's Highway Patrol Group (HPG) that somebody had applied for a
clearance to sell the car and that the applicant was made to appear as one Philip See

Held:

Even solely from this testimony, this Court finds that there was no unlawful taking. A felonious
taking may be defined as the act of depriving another of the possession and dominion of movable property
without his privity and consent and without animus revertendi. Thus, an unlawful taking takes place when
the owner or juridical possessor does not give his consent to the taking; or, if the consent was given, it
was vitiated.

10
 In the last scenario, the receivers act could be considered as having been executed without the
consent of the giver. SEEs testimony clearly evinced his assent to TANs taking of the car not only at the
time he yielded the physical possession thereof for the alleged test-driving but even thereafter, for he
neither withheld his consent nor withdrew the same during the seven-month period the car was with
TAN. At the very least, SEE tolerated TAN's possession of the car.

A contrary conclusion inspires only disbelief. For if the car was truly carnapped, why did SEE wait
for seven months before he reported the same? Further, TAN’s alleged refusal to meet SEE despite his
repeated attempts to do so should have sufficiently alerted him of the formers supposed malevolent
intent, yet he still did not report the taking. Even if he failed to report the taking, months after the alleged
test-driving, he had allegedly seen his car in the initial stages of dismemberment on 19 May 1993 yet,
again, he did not report the carnapping on that day nor on the next, but much later on 7 June 1993 or
almost a month thereafter.

--o--

G.R. No. 142380. September 5, 2002

PEOPLE vs LOBITANIA

Facts:

That on or about December 6, 1998, in the City or Urdaneta and within the jurisdiction of this
Honorable Court, accused SPO1 Danilo Lobitania with grave abuse of authority being a member of the
Navotas PNP-NPD Command, Navotas, Metro Manila, together with three still unidentified companions,
armed with firearms by means of force and intimidation with intent to gain, conspiring with one another,
did, then and there willfully, unlawfully, and feloniously take, steal and carry away one Yamaha motorized
tricycle with Plate No. 2N-7910 owned by David Sarto and driven at the time by Alexander de Guzman
against the latter’s will and without his consent and on the occasion of the carnapping or by reason
thereof, accused with intent to kill, treachery and taking advantage of superior strength conspiring with
one another, did, then and there willfully, unlawfully and feloniously box, hogtie, shoot and push out of
the moving tricycle which caused the instantaneous death of said Alexander de Guzman, to the damage
and prejudice of his heirs.
The trial court rendered a decision finding accused-appellant of the crime of aggravated carnapping with
murder.

Held:

The unlawful taking of motor vehicles is now covered by the anti -carnapping law, and not by the
provisions on qualified theft or robbery.

After a thorough review of the records, we find that the prosecution was able to prove that
accused-appellant’s guilt beyond reasonable doubt. Based on the facts proven, the offense committed by
accused-appellant is the special complex crime of qualified carnapping or carnapping in an aggravated
form under Section 14 of Republic Act No. 6539, the Anti-Carnapping Act of 1992, as amended by Section
20 of Republic Act No. 7659, the Death Penalty Law, which took effect on 31 December 1993.

11
 In Section 2 of R. A. 6536 as amended, defines the crime of carnapping as the taking, with intent
to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence
against or intimidation of persons, or by using force upon things. It becomes qualified when in the course
of the commission or on occasion of the carnapping, the owner, driver or occupant of the carnapped
vehicle is killed or raped. When the carnapping is qualified, the penalty imposable is reclusion perpetua
to death.

In the case at bar, all the elements were duly proven by the prosecution. Based on the testimony
of Sanchez, accused-appellant and his companions shot the driver of the tricycle, abandoned him and took
possession of the vehicle. The testimony of Sanchez that the driver was unknown to the group clearly
establishes the fact that the motive of accused-appellant was to steal the tricycle and that the killing of
the driver was incidental thereto.

--o--

G. R. No. 148233. June 8, 2004

PEOPLE vs BUSTINERA

Facts:

ESC Transport hired Luisito Bustinera as a taxi driver. It was agreed that appellant would drive the
taxi from 6:00 a.m. to 11:00 p.m., after which he would return it to ESC Transport's garage and remit the
boundary fee in the amount of P780.00 per day. On December 25,1996, appellant admittedly reported
for work and drove the taxi, but he did not return it on the same day as he was supposed to. The owner
of ESC reported the taxi stolen. On January 9, 1997, Bustinera's wife went to ESC Transport and revealed
that the taxi had been abandoned. ESC was able to recovered. The trial court found him guilty beyond
reasonable doubt of qualified theft.

Held:

Bustinera was convicted of qualified theft under Article 310 of the Revised Penal Code, as
amended for the unlawful taking of a motor vehicle. However, Article 310 has been modified, with respect
to certain vehicles, by Republic Act No. 6539, as amended, otherwise known as "AN ACT PREVENTING
AND PENALIZING CARNAPPING. "When statutes are in pari materia or when they relate to the same
person or thing, or to the same class of persons or things, or cover the same specific or particular subject
matter, or have the same purpose or object, the rule dictates that they should be construed together.

The elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are:
(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.

Theft is qualified when any of the following circumstances is present: (1) the theft is committed
by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen
is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken

12
from the premises of a plantation; (5) the property stolen is fish taken from a fish pond or fishery; and (6)
the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance. On the other hand, Section 2 of Republic Act No.6539, as
amended defines "car napping" as "the taking, with intent to gain, of a motor vehicle belonging to another
without the latter's consent, or by means of violence against or intimidation of persons, or by using force
upon things."

The elements of car napping are thus: (1) the taking of a motor vehicle which belongs to another;
(2) the taking is without the consent of the owner or by means of violence against or intimidation of
persons or by using force upon things; and (3) the taking is done with intent to gain. Car napping is
essentially the robbery or theft of a motorized vehicle, the concept of unlawful taking in theft, robbery
and car napping being the same. From the foregoing, since appellant is being accused of the unlawful
taking of a Daewoo sedan, it is the anti-car napping law and not the provisions of qualified theft which
would apply

--o--

G.R. No. 207662, April 13, 2016

PEOPLE vs URZAIS

Facts:

Accused-appellant, together with co-accused Alex Bautista and Ricky Bautista, was charged with
Violation of Republic Act (R.A.) No. 6539, otherwise known as the Anti -Carnapping Act of 1972, as
amended by R.A. No. 7659, with homicide through the use of an unlicensed firearm.

November 13, 2002 in Cabanatuan City the above-named accused, conspiring, confederating with
and abetting one another, with intent to gain and by means of force, violence and intimidation, did then
and there, willfully, unlawfully and feloniously take, steal and carry away, a Isuzu Highlander with Plate
No. UUT-838 car, colored Forest Green owned by and belonging to said MARIO MAGDATO, against his
will and consent and to his damage and prejudice in the aforestated amount of P500,000.00, and on the
occasion of the carnapping, did assault and use personal violence upon the person of one MARIO
MAGDATO, that is, by shooting the latter with an unlicensed firearm, thereby inflicting upon him gunshot
wound on the head which caused his death.

SPO2 Figueroa of the Philippine National Police (PNP), Cabanatuan City, testified concerning the
circumstances surrounding accused-appellant's arrest. He stated that in November 2002, their office
received a "flash alarm" from the Bulacan PNP about an alleged carnapped Isuzu Highlander in forest
green color. Thereafter, their office was informed that the subject vehicle had been seen in the AGL
Subdivision, Cabanatuan City. Thus, a team conducted surveillance there and a checkpoint had been set
up outside its gate. Around three o'clock in the afternoon of 20 November 2002, a vehicle that fit the
description of the carnapped vehicle appeared. The officers apprehended the vehicle and asked the driver,
accused-appellant, who had been alone, to alight therefrom. When the officers noticed the accused
appellant’s waist to be bulging of something, he was ordered to raise his shirt and a gun was discovered
tucked there. The officers confiscated the unlicensed 9mm Norinco, with magazine and twelve (12) live
ammunitions. The officers confirmed that the engine of the vehicle matched that of the victim's.

13
 Accused-appellant testified that he had ordered in October 2002 from brothers Alex and Ricky
Bautista, an owner-type jeepney worth P60,000.00 for use in his business. The brothers, however,
allegedly delivered instead a green Isuzu Highlander around half past three o'clock in the afternoon of 13
November 2002. The brothers told accused-appellant that his P60,000.00 would serve as initial payment
with the remaining undetermined amount to be paid a week after. Accused-appellant agreed to this,
amazed that he had been given a new vehicle at such low price. Accused-appellant then borrowed money
from someone to pay the balance but the brothers never replied to his text messages. On 16 November
2002, his friend Oscar Angeles advised him to surrender the vehicle as it cou ld be a "hot car."
Accusedappellant was initially hesitant to this idea as he wanted to recover the amount he had paid but
he eventually decided to sell the vehicle. He removed its plate number and placed a "for sale" sign at the
back.

On 18 November 2002, he allegedly decided to surrender the vehicle upon advice by a certain
Angie. But when he arrived home in the afternoon of that day, he alleged that he was arrested by Alex
Villareal, a member of the Criminal Investigation and Detection Group (CIDG) of Sta. Rosa, Nueva Ecija.
Accused-appellant also testified that he found out in jail the owner of the vehicle and his unfortunate
demise.On cross-examination, accused-appellant admitted that his real name is "Michael Tapayan y
Baguio" and that he used the name Fabian Urzais to secure a second passport in 2001 to be able to return
to Taiwan.

Held:

In the instant case, the Court finds the charge of carnapping unsubstantiated for failure of the
prosecution to prove all its elements. For one, the trial court's decision itself makes no mention of any
direct evidence indicating the guilt of accused-appellant. Indeed, the CA confirmed the lack of such direct
evidence.22 Both lower courts solely based accused-appellant's conviction of the special complex crime
on one circumstantial evidence and that is, the fact of his possession of the allegedly carnapped vehicle.

The Court notes that the prosecution's evidence only consists of the fact of the victim's
disappearance, the discovery of his death and the details surrounding accused -appellant's arrest on
rumors that the vehicle he possessed had been carnapped. There’s i s absolutely no evidence supporting
the prosecution's theory that the victim's vehicle had been carnapped, much less that the
accusedappellant is the author of the same.

Certainly, it is not only by direct evidence that an accused may be convicted, but for circumstantial
evidence to sustain a conviction, following are the guidelines: (1) there is more than one circumstance;
(2) the facts from which the inferences are derived are proven; and (3) the combination of all the
circumstances is as such as to produce a conviction beyond reasonable doubt. Decided cases expound
that the circumstantial evidence presented and proved must constitute an unbroken chain which leads to
one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty
person. All the circumstances must be consistent with each other, consistent with the hypothesis that the
accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every
other rationale except that of guilt.

In the case at bar, notably there is only one circumstantial evidence. And this sole circumstantial
evidence of possession of the vehicle does not lead to an inference exclusively consistent with guilt.
Fundamentally, prosecution did not offer any iota of evidence detailing the seizure of the vehicle, much

14
less with accused-appellant's participation. In fact, there is even a variance concerning how accused
appellant was discovered to be in possession of the vehicle.

--o--

G.R. No. 163437, 13 February 2008

PIDELI vs PEOPLE

Facts:

Placido Cancio (Placido) and Wilson Pideli (Wilson) were partners and subcontractors in a rip
rapping and spillway project at Benguet. Petitioner Ernesto Pideli extended his credit limit with the Mt.
Trail Farm Supply and Hardware (MTFSH) to Placido and Wilson for their purchase of construction
materials. After the release of the final payment to Wilson and Placido, they calculated their expenses and
realized a net income of P130, 000.00. This was fully entrusted to the custody of Pideli for the settlement
of their account with MTFHS. Pideli was instructed that the balance should be delivered to Wilson and
Placido. The two, however, did not anymore receive anything from Pideli. They were informed that
nothing was left from the proceeds after the settlement of their account. A criminal complaint was filed
against him and the Regional Trial Court found Pideli guilty of the crime of theft. On appeal, the Court of
Appeals affirmed the decision of the lower court.

Held:

Petition DISMISSED.

The elements of theft 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.

There is, here, a confluence of the elements of theft. Petitioner received the final payment due the
partners Placido and Wilson under the pretext of paying off their obligation with the MTFSH. Under the
terms of their agreement, petitioner was to account for the remaining balance of the said funds and give
each of the partners their respective shares. He, however, failed to give private complainant Placi do what
was due him under the construction contract.

In an effort to exculpate himself, petitioner posits that he cannot be held liable for theft of the
unaccounted funds. The monies subject matter of the complaint pertain to the partnership. As an agent
of partner Wilson, intent to gain cannot be imputed against petitioner.

Although there is misappropriation of funds here, petitioner was correctly found guilty of theft. As
early as U.S. v. De Vera, the Court has consistently ruled that not all misappropriation is estafa.

15
 The principal distinction between the two crimes is that in theft the thing is taken while in estafa the
accused receives the property and converts it to his own use or benefit. However, there may be theft even
if the accused has possession of the property. If he was entrusted only with the material or physical
(natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he
has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa.

RELATED LAWS

Republic Act No. 6539: Anti-Carnapping Act of 1972 (Repealed)

Republic Act No. 7659: An Act to Impose the Death Penalty on Certain Heinous Crimes
- Introduced three amendments to Republic Act No. 6539: (1) the change of the penalty of life
imprisonment to reclusion perpetua to death, (2) the inclusion of rape, and (3) the change of the
phrase in the commission of the carnapping to in the course of the commission of the carnapping
or on the occasion thereof

Republic Act No. 9346: An Act Prohibiting the Imposition of Death Penalty in the Philippines
- In lieu of the death penalty, the following shall be imposed:
(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of
the penalties of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law violated does not make use of the
nomenclature of the penalties of the Revised Penal Code.

Article 293-305: Robbery

- Any person who, with intent to gain, shall take any personal property belonging to another, by
means of violence or intimidation of any person, or using force upon anything shall be guilty of
robbery.

Article 310: Qualified Theft

- The crime of theft shall be punished by the penalties next higher by two degrees than those
respectively specified in the next preceding article, if committed by a domestic servant, or with
grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle
or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or
fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or
any other calamity, vehicular accident or civil disturbance.

Presidential Decree No. 1612: Anti-Fencing Law of 1979

- is the act of any person who, with intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner
deal in any article, item, object or anything of value which he knows, or should be known to him,
to have been derived from the proceeds of the crime of robbery or theft.

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OTHER INFORMATION REGARDING RA 10883

Section 9. Duty of Collector of Customs to Report.

Within seven (7) days after the arrival of an imported vehicle, motor vehicle engine, engine block,
chassis or body, the Collector of Customs of a principal port of entry where the imported vehicle or parts
enumerated above are unloaded shall report the shipment to the LTO, specifying the make, type and serial
numbers, if any, of the motor vehicle, motor vehicle engine, engine block, chassis or body, and stating the
names and addresses of the owner or consignee thereof. If the motor vehicle, m otor vehicle engine,
engine block, chassis or body does not bear any serial number, the Collector of Customs concerned shall
hold the motor vehicle, motor vehicle engine, engine block, chassis or body until it is numbered by the
LTO: Provided, that a PNP clearance shall be required prior to engraving the engine or chassis number.

Section 10. Duty of Importers, Distributors and Sellers of Motor Vehicles to Keep Record of Stocks.

Any person engaged in the importation, distribution, and buying and selling of motor vehicles,
motor vehicle engines, engine blocks, chassis or body shall keep a permanent record of one’s stocks,
stating therein their type, make and serial numbers, and the names and addresses of the persons from
whom they were acquired and the names and addresses of the persons to whom they are sold, and shall
render accurately a monthly report of his/her transactions in motor vehicles to the LTO.

Section 11. Duty of Manufacturers of Engine Blocks, Chassis or Body to Cause the Numbering of Engine
Blocks, Chassis or Body Manufactured.

Any person engaged in the manufacture of engine blocks, chassis or body shall cause the
numbering of every engine block, chassis or body manufactured in a convenient and conspicuous part
thereof which the LTO may direct for the purpose of uniformity and identification of the factory and shall
submit to the LTO a monthly report of the manufacture and sale of engine blocks, chassis or body.

Section 12. Clearance and Permit Required for Assembly or Rebuilding of Motor Vehicles.

Any person who shall undertake to assemble or rebuild or cause the assembly or rebuilding of a
motor vehicle shall first secure a certificate of clearance from the PNP: Provided, That no such permit shall
be issued unless the applicant shall present a statement under oath containing the type, make and serial
numbers of the engine, chassis and body, if any, and the complete list of the spare parts of the motor
vehicle to be assembled or rebuilt together with the names and addresses of the sources the reof.

In the case of motor vehicle engines to be mounted on motor boats, motor bancas, water crafts
and other light water vessels, the applicant shall secure a permit from the PNP, which office shall in turn
furnish the LTO pertinent data concerning the motor vehicle engines including their type, make and serial
numbers.

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Section 13. Clearance Required for Shipment of Motor Vehicles, Motor Vehicle Engines, Engine Blocks,
Chassis or Body.

The Philippine Ports Authority (PPA) shall submit a report to the PNP within seven (7) days upon
boarding all motor vehicles being boarded the “RORO”, ferry, boat, vessel or ship for interisland and
international shipment. The PPA shall not allow the loading of motor vehicles in all interisland and
international shipping vessels without a motor vehicle clearance from the PNP, except cargo trucks and
other trucks carrying goods, Land Transportation Franchising and Regulatory Board (LTFRB) -accredited
public utility vehicles (PUV) and other motor vehicles carrying foodstuff and dry goods.

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COMPARATIVE TABLE
Anti-Carnapping Act of 1972 (R.A. 6359) and New Anti-Carnapping Act of 2016 (R.A. 10883)
R.A. 6539
Short title: “Anti-Carnapping Act of 1972.”
Definition of Terms
"Defacing or tampering with" a serial number is
the erasing, scratching, altering or changing of
the original factory-inscribed serial number on
the motor vehicle engine, engine block or chassis
of any motor vehicle. Whenever any motor
vehicle is found to have a serial number on its
motor engine, engine block or chassis which is
different from that which is listed in the records
of the Bureau of Customs for motor vehicles
imported into the Philippines, that motor vehicle
shall be considered to have a defaced or
tampered with serial number.
Section 14. Penalty for Carnapping. Any person
who is found guilty of carnapping, as this term is
defined in Section two of this Act, shall,
irrespective of the value of motor vehicle taken,
be punished by imprisonment for not less than
fourteen (14) years and eight (8) months and not
more than seventeen (17) years and four (4)
months, when the carnapping is committed
without violence or intimidation of persons, or
force upon things; and by imprisonment for not
less than seventeen (17) years and four (4)
months and not more than thirty (30) years,
when the carnapping is committed by means of
violence against or intimidation of any person, or
force upon things; and the penalty of life
imprisonment to death shall be imposed when
the owner, driver or occupant of the carnapped
motor vehicle is killed in the commission of the
carnapping.
ANNEX A
R.A. 10883
“New Anti-Carnapping Act of 2016”
Added Terms
(d) Identity transfer
(i) Second hand spare parts
(j) Total wreck
(k) Unlawful transfer or use of vehicle plates
Sec. 3 (separate provision for the definition of
“Carnapping”
New Penalties
Sec. 3:
Not less that twenty (20) years and one (1) day
but not more than thirty (30) years, if committed
without violence against or intimidation of
persons, or force upon things;
Not less that twenty (30) years and one (1) day
but not more than thirty (40) years, if committed
with violence against or intimidation of persons,
or force upon things;
Life imprisonment, when owner, driver, or
occupant of the carnapped motor vehicle is killed
or raped in the commission of the carnapping
Bail denied when the evidence of guilt is strong
For persons charged with carnapping or when the
crime of carnapping is committed by criminal
groups, gangs, or syndicates or by means of
violence or intimidation of any person/s or force
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Section 4. Permanent registry of motor vehicle
engines, engine blocks and chassis. The Land
Transportation Commission shall keep a
permanent registry of motor vehicle engines,
engine blocks and chassis of all motor vehicles,
specifying therein their type, make and serial
numbers and stating therein the names and
addresses of their present and previous owners.
Copies of the registry and of all entries made
thereon shall be furnished the Philippine
Constabulary and all Land Transportation
Commission regional, provincial and city branch
offices: Provided, That all Land Transportation
Commission regional, provincial and city branch
offices are likewise obliged to furnish copies of all
registration of motor vehicles to the main office
and to the Philippine Constabulary.
Section 5. Registration of sale, transfer,
conveyance, substitution or replacement of a
motor vehicle engine, engine block or chassis.
Every sale, transfer, conveyance, substitution or
replacement of a motor vehicle engine, engine
block or chassis of a motor vehicle shall be
registered with the Land Transportation
Commission. Motor vehicles assembled and
rebuilt or repaired by replacement with motor
vehicle engines, engine blocks and chassis not
registered with the Land Transportation
Commission shall not be issued certificates of
registration and shall be considered as untaxed
imported motor vehicles or motor vehicles
carnapped or proceeding from illegal sources.
upon things; or when owner, driver, passenger or
occupant of the carnapped motor vehicle is killed
or raped in the course of the carnapping
New Offense:
Sec. 4. Concealment of Carnapping
Penalty:
Six (6) years up to twelve (12) years, and a fine
equal to the amount of the acquisition cost of the
motor vehicle, engine or any other part involved
in the violation
Sec. 7. Permanent registry of motor vehicle
engines, engine blocks and chassis.
Additional Clause
Provided further, That the original copy of the
certificate of registration shall be given to the
registered owner, the second copy shall be
retained with the LTO and the third copy shall be
submitted to the PNP. Moreover, it shall be
unlawful for any person or employee who
willfully encodes in the registry of motor vehicles
a non-existing vehicle or without history, new
identity of already existing vehicle or
double/multiple registration (“KAMBAL”) of
vehicle.
Sec. 8. Registration of sale, transfer, conveyance,
substitution or replacement of a motor vehicle
engine, engine block or chassis. Every sale,
transfer, conveyance, substitution or
replacement of a motor vehicle engine, engine
block or chassis of a motor vehicle shall be
registered with the Land Transportation Office
within twenty (20) working days upon
purchase/acquisition of a motor vehicle and
substitution or replacement of a motor vehicle
engine, engine block or chassis. A motor vehicle,
motor vehicle engine, engine block or chassis
not registered with the LTO shall be presumed
as a carnapped vehicle, an untaxed imported
vehicle, or a vehicle proceeding from illegal
sources unless proven otherwise and shall be
confiscated in favor of the government.
20
Section 7. Duty of Collector of Customs to report
arrival of imported motor vehicle, etc.
Section 12. Defacing or tampering with serial
numbers of motor vehicle engines, engine blocks
and chassis. It shall be unlawful for any person to
deface or otherwise tamper with the original or
registered serial number of motor vehicle
engines, engine blocks and chassis.
Sec. 9
Additional clause:
Provided, That a PNP clearance shall be required
prior to engraving the engine or chassis number.
Defacing or tampering with serial numbers of
motor vehicle engines, engine blocks and
chassis. (Sec. 14)
Identity Transfer (Sec. 15)
Transfer of Vehicle Plate (Sec. 16)
Sale of Secondhand Spare Parts (Sec. 17)
Foreign Nationals, Deportation (Sec. 18)
21