Republic of the Philippines

SUPREME COURT

Manila

G.R. No. L-34665 August 28, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.

DONATO BINDOY, defendant-appellant.

Florentino Saguin for appellant.

Attorney-General Jaranilla for appellee.

VILLAMOR, J.:

The appellant was sentenced by the Court of First Instance of

Occidental Misamis to the penalty of twelve years and one day of
reclusion temporal, with the accessories of law, to indemnify the
heirs of the deceased in the amount of P1,000, and to pay the
costs. The crime charged against the accused is homicide,
according to the following information:

That on or about the 6th of May, 1930, in the barrio of Calunod,

municipality of Baliangao, Province of Occidental Misamis, the
accused Donato Bindoy willfully, unlawfully, and feloniously
attacked and with his bolo wounded Emigdio Omamdam, inflicting
upon the latter a serious wound in the chest which caused his
instant death, in violation of article 404 of the Penal Code.

The accused appealed from the judgment of the trial court, and
his counsel in this instance contends that the court erred in
finding him guilty beyond a reasonable doubt, and in convicting
him of the crime of homicide.

The record shows that in the afternoon of May 6, 1930, a

disturbance arose in a tuba wineshop in the barrio market of
Calunod, municipality of Baliangao, Province of Occidental
Misamis, started by some of the tuba drinkers. There were
Faustino Pacas (alias Agaton), and his wife called Tibay. One
Donato Bindoy, who was also there, offered some tuba to Pacas'
wife; and as she refused to drink having already done so, Bindoy
threatened to injure her if she did not accept. There ensued an
interchange of words between Tibay and Bindoy, and Pacas
stepped in to defend his wife, attempting to take away from
Bindoy the bolo he carried. This occasioned a disturbance which
attracted the attention of Emigdio Omamdam, who, with his
family, lived near the market. Emigdio left his house to see what
was happening, while Bindoy and Pacas were struggling for the
bolo. In the course of this struggle, Bindoy succeeded in
disengaging himself from Pacas, wrenching the bolo from the
latter's hand towards the left behind the accused, with such
violence that the point of the bolo reached Emigdio Omamdam's
chest, who was then behind Bindoy.

There is no evidence that Emigdio took part in the fight between

Bindoy and Pacas. Neither is there any indication that the accused
was aware of Emigdio Omamdam's presence in the place, for,
according to the testimony of the witnesses, the latter passed
behind the combatants when he left his house to satisfy his
curiosity. There was no disagreement or ill feeling between
Bindoy and Omamdam, on the contrary, it appears they were
nephew and uncle, respectively, and were on good terms with
each other. Bindoy did not try to wound Pacas, and instead of
wounding him, he hit Omamdam; he was only defending his
possession of the bolo, which Pacas was trying to wrench away
from him, and his conduct was perfectly lawful.

The wound which Omamdam received in the chest, judging by

the description given by the sanitary inspector who attended him
as he lay dying, tallies with the size of the point of Bindoy's bolo.

There is no doubt that the latter caused the wound which

produced Emigdio Omamdam's death, but the defendant alleges
that it was caused accidentally and without malicious intent.

Pacas and the widow of the deceased, Carmen Angot, testified

having seen the accused stab Omamdam with his bolo. Such
testimony is not incompatible with that of the accused, to the
effect that he wounded Omamdam by accident. The widow
testified that she knew of her husband's wound being caused by
Bindoy from his statement to her before his death.

The testimony of the witnesses for the prosecution tends to show

that the accused stabbed Omamdam in the chest with his bolo on
that occasion. The defendant, indeed, in his effort to free himself
of Pacas, who was endeavoring to wrench his bolo from him, hit
Omamdam in the chest; but, as we have stated, there is no
evidence to show that he did so deliberately and with the
intention of committing a crime. If, in his struggle with Pacas, the
defendant had attempted to wound his opponent, and instead of
doing so, had wounded Omamdam, he would have had to answer
for his act, since whoever willfully commits a felony or a
misdemeanor incurs criminal liability, although the wrongful act
done be different from that which he intended. (Art. 1 of the
Penal Code.) But, as we have said, this is not the case.

The witness for the defense, Gaudencio Cenas, corroborates the

defendant to the effect that Pacas and Bindoy were actually
struggling for the possession of the bolo, and that when the latter
let go, the former had pulled so violently that it flew towards his
left side, at the very moment when Emigdio Omamdam came up,
who was therefore hit in the chest, without Donato's seeing him,
because Emigdio had passed behind him. The same witness adds
that he went to see Omamdam at his home later, and asked him
about his wound when he replied: "I think I shall die of this
wound." And then continued: "Please look after my wife when I
die: See that she doesn't starve," adding further: "This wound
was an accident. Donato did not aim at me, nor I at him: It was a
mishap." The testimony of this witness was not contradicted by
any rebuttal evidence adduced by the fiscal.

We have searched the record in vain for the motive of this kind,
which, had it existed, would have greatly facilitated the solution
of this case. And we deem it well to repeat what this court said in
United States vs. Carlos (15 Phil., 47), to wit:

The attention of prosecuting officers, and especially of provincial

fiscals, directed to the importance of definitely ascertaining and
proving, when possible, the motives which actuated the
commission of a crime under investigation.

In many criminal cases one of the most important aids in

completing the proof of the commission of the crime by the
accused is the introduction of evidence disclosing the motives
which tempted the mind of the guilty person to indulge the
criminal act.

In view of the evidence before us, we are of opinion and so hold,

that the appellant is entitled to acquittal according to article 8, No.
8, Penal Code. Wherefore, the judgment appealed from is
reversed, and the accused Donato Bindoy is hereby acquitted
with costs de oficio. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real,

and Imperial, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5887 December 16, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.

Thos. D. Aitken for appellant.

Attorney-General Villamor for appellee.

ARELLANO, C. J.:

The first complaint filed against the defendant, in the Court of

First Instance of Cebu, stated that he "carried, kept, possessed
and had in his possession and control, 96 kilogrammes of opium,"
and that "he had been surprised in the act of selling 1,000 pesos
worth prepared opium."

The defense presented a demurrer based on two grounds, the

second of which was the more than one crime was charged in the
complaint. The demurrer was sustained, as the court found that
the complaint contained two charges, one, for the unlawful
possession of opium, and the other, for the unlawful sale of
opium, and, consequence of that ruling, it ordered that the fiscal
should separated one charge from the other and file a complaint
for each violation; this, the fiscal did, and this cause concerns
only the unlawful possession of opium. It is registered as No.
375, in the Court of First Instance of Cebu, and as No. 5887 on
the general docket of this court.

The facts of the case are contained in the following finding of the
trial court:

The evidence, it says, shows that between 11 and 12 o'clock

a. m. on the present month (stated as August 19, 1909),
several persons, among them Messrs. Jacks and Milliron,
chief of the department of the port of Cebu and internal-
revenue agent of Cebu, respectively, went abroad the
steamship Erroll to inspect and search its cargo, and found,
first in a cabin near the saloon, one sack (Exhibit A) and
afterwards in the hold, another sack (Exhibit B). The sack
referred to as Exhibit A contained 49 cans of opium, and the
other, Exhibit B, the larger sack, also contained several cans
of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the
defendant's control, who moreover, freely and of his own will
and accord admitted that this sack, as well as the other
referred to in Exhibit B and found in the cabin, belonged to
him. The said defendant also stated, freely and voluntarily,
that he had bought these sacks of opium, in Hongkong with
the intention of selling them as contraband in Mexico or Vera
Cruz, and that, as his hold had already been searched
several times for opium, he ordered two other Chinamen to
keep the sack. Exhibit A.

It is to be taken into account that the two sacks of opium,

designated as Exhibits A and B, properly constitute the corpus
delicti. Moreover, another lot of four cans of opium, marked, as
Exhibit C, was the subject matter of investigation at the trial, and
with respect to which the chief of the department of the port of
Cebu testified that they were found in the part of the ship where
the firemen habitually sleep, and that they were delivered to the
first officer of the ship to be returned to the said firemen after the
vessel should have left the Philippines, because the firemen and
crew of foreign vessels, pursuant to the instructions he had from
the Manila custom-house, were permitted to retain certain
amounts of opium, always provided it should not be taken shore.

And, finally, another can of opium, marked "Exhibit D," is

also corpus delicti and important as evidence in this cause. With
regard to this the internal-revenue agent testified as follows:itc-
alf
 FISCAL. What is it?

WITNESS. It is a can opium which was bought from the

defendant by a secret-service agent and taken to the office
of the governor to prove that the accused had opium in his
possession to sell.

On motion by the defense, the court ruled that this answer might
be stricken out "because it refers to a sale." But, with respect to
this answer, the chief of the department of customs had already
given this testimony, to wit:

FISCAL. Who asked you to search the vessel?

WITNESS. The internal-revenue agent came to my office and

said that a party brought him a sample of opium and that
the same party knew that there was more opium on board
the steamer, and the agent asked that the vessel be
searched.

The defense moved that this testimony be rejected, on the

ground of its being hearsay evidence, and the court only ordered
that the part thereof "that there was more opium, on board the
vessel" be stricken out.

The defense, to abbreviate proceedings, admitted that the

receptacles mentioned as Exhibits A, B, and C, contained opium
and were found on board the steamship Erroll, a vessel of English
nationality, and that it was true that the defendant stated that
these sacks of opium were his and that he had them in his
possession.

According to the testimony of the internal-revenue agent, the

defendant stated to him, in the presence of the provincial fiscal,
of a Chinese interpreter (who afterwards was not needed,
because the defendant spoke English), the warden of the jail, and
four guards, that the opium seized in the vessel had been bought
by him in Hongkong, at three pesos for each round can and five
pesos for each one of the others, for the purpose of selling it, as
contraband, in Mexico and Puerto de Vera Cruz; that on the 15th
the vessel arrived at Cebu, and on the same day he sold opium;
that he had tried to sell opium for P16 a can; that he had a
contract to sell an amount of the value of about P500; that the
opium found in the room of the other two Chinamen prosecuted
in another cause, was his, and that he had left it in their
stateroom to avoid its being found in his room, which had already
been searched many times; and that, according to the defendant,
the contents of the large sack was 80 cans of opium, and of the
small one, 49, and the total number, 129.

It was established that the steamship Erroll was of English

nationality, that it came from Hongkong, and that it was bound
for Mexico, via the call ports of Manila and Cebu.

The defense moved for a dismissal of the case, on the grounds

that the court had no jurisdiction to try the same and the facts
concerned therein did not constitute a crime. The fiscal, at the
conclusion of his argument, asked that the maximum penalty of
the law be imposed upon the defendant, in view of the
considerable amount of opium seized. The court ruled that it did
not lack jurisdiction, inasmuch as the crime had been committed
within its district, on the wharf of Cebu.

The court sentenced the defendant to five years' imprisonment,

to pay a fine of P10,000, with additional subsidiary imprisonment
in case of insolvency, though not to exceed one third of the
principal penalty, and to the payment of the costs. It further
ordered the confiscation, in favor of the Insular Government, of
the exhibits presented in the case, and that, in the event of an
appeal being taken or a bond given, or when the sentenced
should have been served, the defendant be not released from
custody, but turned over to the customs authorities for the
purpose of the fulfillment of the existing laws on immigration.

From this judgment, the defendant appealed to this

court.lawphi1.net

The appeal having been heard, together with the allegations

made therein by the parties, it is found: That, although the mere
possession of a thing of prohibited use in these Islands, aboard a
foreign vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of this
country, on account of such vessel being considered as an
extension of its own nationality, the same rule does not apply
when the article, whose use is prohibited within the Philippine
Islands, in the present case a can of opium, is landed from the
vessel upon Philippine soil, thus committing an open violation of
the laws of the land, with respect to which, as it is a violation of
the penal law in force at the place of the commission of the
crime, only the court established in that said place itself had
competent jurisdiction, in the absence of an agreement under an
international treaty.

It is also found: That, even admitting that the quantity of the

drug seized, the subject matter of the present case, was
considerable, it does not appear that, on such account, the two
penalties fixed by the law on the subject, should be imposed in
the maximum degree.

Therefore, reducing the imprisonment and the fine imposed to six

months and P1,000, respectively, we affirm in all other respects
the judgment appealed from, with the costs of this instance
against the appellant. So ordered.

Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT

Manila FIRST DIVISION

Today is Tuesday, August 13, 2019

G.R. No. 94953 September 5, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee,
 vs.
 ARMANDO DE LARA Y GALARO, accused-
appellant.

The Solicitor General for plaintiff-appellee. Tan, Manzano & Velez

for accused-appellant.

QUIASON, J.:

This is an appeal from the decision of the Regional Trial Court,

Branch 28, Manila in Criminal Case No. 94953, finding appellant
guilty beyond reasonable doubt of violating Section 4 of Republic
Act No. 6425, as amended by B.P. Blg. 179.

The Information charged appellant as follows:

That on or about January 9, 1987, in the City of Manila,

Philippines, the said accused, not being authorized by law to sell,
deliver, give away to another or distribute any prohibited drug,
did then and there willfully and unlawfully sell or offer for sale
two (2) foils of flowering tops of marijuana and one (1) plastic
bag of flowering tops of marijuana, which are prohibited drugs
(Rollo, p. 6).

Upon arraignment, appellant, assisted by his counsel de parte,

pleaded not guilty to the information (Records p. 5). II

On December 15, 1986, Capt. Restituto Cablayan of the National

Criminal Investigation Service (NCIS) of the Western Police
District (WPD), instructed Sgt. Enrique David to conduct a
surveillance operation in the vicinity of Garrido and Zamora
Streets at Sta. Ana, Manila, after receiving reports of rampant
drug-pushing in that area (TSN, December 14, 1987, p. 21).

In compliance thereof, a team led by Sgt. Enrique David,

conducted a surveillance operation on December 15 and 17, and
confirmed the reported drug-pushing activities in that area by the
group of appellant and a certain Ricky alias "Pilay" (TSN,
December 2, 1987, pp. 5-6). No arrest was made because the
team was instructed by their superior to conduct a surveillance
operation only (TSN, January 11, 1988, p. 28).

On January 8, 1987, Malaya (Exh. "F") and People's Tonight (Exh.

"K"), reported that there were rampant, drug- pushing activities
in the vicinity of Garrido and Zamora Streets in Sta. Ana, Manila,
prompting Gen. Alfredo Lim, then WPD Superintendent, to
reprimand the NCIS office (TSN, December 2, 1987, p. 2).

On January 9, because of the reprimand given by Gen. Lim, Capt.

Cablayan instructed Sgt. David to plan a buy-bust operation and
to form a
 six-man team with Pfc. Martin Orolfo, Jr. as the
poseur-buyer (TSN, December 2, 1987, p. 6, January 11, 1988,
p. 6).

At around 4:45 P.M. of the same day, the team, together with
their confidential informant, went to Garrido Street. Upon arriving
threat, they strategically positioned themselves. Pfc. Orolfo, Jr.
and the confidential informant proceeded to the house of
appellant located at No. 2267 Garrido Street, where they saw him
standing outside. The confidential informant introduced Pfc.
Orolfo, Jr. to appellant as an interested buyer of marijuana.
Appellant asked Pfc. Orolfo, Jr. "Ilan ang bibilhin ninyo?" (How
much will you buy?). Pfc. Orolfo, Jr., replied: "Two foils" handing
at the same time the marked twenty-peso bill (Exh. "E") to
appellant. The latter, after placing the money in the right pocket
of his pants, went inside his house (TSN, January 11, 1988, pp.
7-9). Minutes later, appellant came back and handed two foils
(Exhs. "D-1-a" and "D-1-b") wrapped in onion paper (TSN,
January 11, 1988, p. 8). It was after he handed the two foils to
Pfc. Orolfo Jr., that he sensed the presence of the police
operatives. He then tried to retrieve the two foils but Pfc. Orolfo,
Jr. prevented him from doing so. During the scuffle, one foil was
torn. Appellant then ran inside his house with Pfc. Orolfo, Jr. in
pursuit. The latter was able to subdue appellant. Sgt. David
confronted appellant, who admitted that he kept prohibited drugs
in his house. Appellant showed the arresting officers a blue plastic
bag with white lining containing prohibited drugs. A receipt of the
articles seized (Exh. "F") was made by Pfc. Orolfo, Jr. (TSN,
January 11, 1988, pp. 12-15).

Thereafter, the team, together with appellant, proceeded to the

WPD headquarters for investigation. Thereat, Sgt. David ordered
Pfc. Orolfo, Jr. to commence the investigation of appellant (TSN,
January 11, 1988, pp. 19-21).

During the investigation, appellant was apprised of his

constitutional rights to remain silent and to have the assistance of
counsel. When appellant was asked to give a written statement,
he refused to do so pending arrival of his lawyer (TSN, January
11, 1988, p. 23).

The prohibited drugs seized from appellant were brought to the

NBI for chemical analysis. A report and certification of Ms. Aida
Pascual, Forensic Chemist of the NBI (Exhs. "C" and "D"), show
the drugs to be positive for marijuana.

Appellant denied having sold marijuana to anyone and claimed

that the arresting officers merely planted the marijuana on his
person. He testified that on January 9, 1987, he arrived home
from work as a security guard of the

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Vergara Brothers Agency at around 3:00 P.M. After changing his

clothes, he went out to fetch his son, who was left in the care of a
neighbor. Upon returning to his house with his son, he was
arrested by the police. The police proceeded to search his house,
without any search warrant shown to him. After the search, he
and his wife were brought to the WPD headquarters. He claimed
that inspite of his protestation that he would like to wait for his
lawyer before giving any statement, the police continued their
interrogation.

Appellant denied that the twenty-peso bill was given to him by

the poseur-buyer. He claimed that he was merely forced to sign
his name on the photocopy of the twenty-peso bill (Exh. "F") and
that the first time he saw the blue plastic bag containing
prohibited drugs was when he was at the police station (TSN,
June 14, 1988, pp. 1-11).

To corroborate his story, appellant presented his younger

brother, Gerry de Lara. On October 2, 1989, the trial court
rendered its decision, disposing as follows:

WHEREFORE, judgment is hereby rendered finding the accused

guilty beyond reasonable doubt of violation of Sec 4, Art II of R.A.
6425 as amended as charged in the Information; and this Court
hereby sentences the accused to suffer a penalty of life
imprisonment and to pay a fine of P20,000.00 (Rollo, p. 24).

Hence, this appeal.

III

In his appeal, appellant questions the legality of his arrest and

the seizure of prohibited drugs found inside his house.
Furthermore, he claims that he was not assisted by counsel
during his custodial interrogation (Rollo, pp. 55- 57).

As to the legality of appellant's arrest, we find that the police

operatives acted within the bounds of law. Section 5, Rule 113 of
the 1985 Rules on Criminal Procedures dealing with warrantless
arrests provides:
Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person;

a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense;

b) When an offense has in fact just been committed and he has

personal knowledge of facts indicating that the person to be
arrested has committed it;

x xx xxx xxx

In the case at bench, appellant was caught red-handed in

delivering two tin foils of marijuana to Pat. Orolfo, Jr., the
poseur-buyer. Applying the aforementioned provision of law,
appellant's arrest was lawfully effected without need of a warrant
of arrest. "Having caught the appellant in flagrante as a result of
the buy-bust operation, the policemen were not only authorized
but were also under obligation to apprehend the drug pusher
even without a warrant of arrest" (People v. Kalubiran, 196 SCRA
644 [1991]; People vs. De Los Santos, 200 SCRA 431 [1991]).

Appellant, however, asseverates that his arrest was precipitated

only by newspaper publications about the rampant sale of drugs
along Garrido and Zamora Streets, Sta. Ana, Manila (Rollo, p.
53). If appellant implies that the police merely stage-managed
his arrest in order to show that they were not remiss in their
duties, then appellant is wrong. A surveillance on the illegal
activities of the appellant was already conducted by the police as
early as December 15 and 17, 1986. The newspaper reports
concerning the illegal drug activities came out only on January 8
and 14, 1987, long after the police knew of the said illegal
activities. Appellant's eventual arrest on January 9, 1987 was the
result of the surveillance conducted and the buy-bust operation.

The evidence shows that appellant ran inside his house upon
sensing the presence of the police operatives. The testimony of
Pat. Orolfo, Jr., the poseur-buyer, is as follows:

FISCAL:
Q: After placing the P20 bill in his right pocket, what did he do?

A: He went to his house and minutes later, he came back, sir.

Q: When he came back what happened?

A: He handed to me two tin foils containing suspected marijuana

leaves wrapped in onion paper.

Q: And what happened next when he returned with those items?

A: After he handed to me two foils, he sensed the presence of the

operatives and he tried to retrieve the two foils, sir, and I
prevented him and during the scuffle one piece of foil was
broken, he tried to run inside the house, so I subdued him
immediately and apprehended him while he was inside the house.

Q: After he was subdued by your group, what happened?

A: Sgt. David confronted him regarding this case and he

voluntarily admitted that he was still keeping prohibited drugs
inside his house?

Q: What did the group do after he voluntarily admitted that he

was keeping prohibited drugs inside his house?

A: He pointed inside his house (sic) one plastic bag colored blue
with white lining containing prohibited drug" (TSN, January 11,
1988, pp. 12-14).

The policemen's entry into the house of appellant without a

search warrant was in hot-pursuit of a person caught committing
an offense in flagrante. The arrest that followed the hot-pursuit
was valid (1985 Rules on Criminal Procedure, Rule 113, Section
5[a]).

We also find as valid the seizure of the plastic bag of prohibited

drugs found inside appellant's house.

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The seizure of the plastic bag containing prohibited drugs was the
result of appellant's arrest inside his house. A contemporaneous
search may be conducted upon the person of the arrestee and
the immediate vicinity where the arrest was made (People v.
Castiller, 188 SCRA 376 [1990]).

We find to be meritorious appellant's claim that he was not

assisted by counsel during the custodial investigation, specifically
when he was forced to sign the photocopy of the marked twenty-
peso bill (Exh. "E"), Receipt of Property Seized (Exh. "F"), and the
Booking and Information Sheet (Exh. "H").

The said documents are inadmissible in evidence for the reason

that there was no showing that appellant was then assisted by
counsel nor his waiver thereto put into writing (Constitution, Art.
III, Sec. 3[2]).

Be that as it may, the rejection of said evidence would not affect

the conviction of appellant in view of the abundance of other
evidence establishing his guilt. The ruling in People v. Mauyao,
207 SCRA 732 (1992) is apropos:

It bears emphasis, however, that the accused appellant's

conformity to the questioned documents has not been a factor at
all in his conviction. For even if these documents were
disregarded, still the accused-appellant's guilt has been
adequately established by other evidence of record. The trial
court's verdict was based on the evidence of the prosecution not
on his signatures on the questioned documents. Accused-
appellant's denial simply can not prevail over the detailed and
unshaken testimonies of the apprehending officers who caught
him red-handed selling marijuana and who have not shown to
have any ulterior motive to testify falsely against accused-
appellant.

IV

The trial court sentenced appellant to suffer the penalty of life

imprisonment and to pay a fine of P20,000.00 pursuant to
Section 4, Article II of the Dangerous Drugs Act of 1972, as
amended by B.P. Blg. 179. However, said law was further
amended by R.A. No. 7659.

Under Section 17 of R.A. No. 7659, the penalty to be imposed for

selling, administering, delivering or distributing less than 750
grams of marijuana, shall range from "prision correccional to
reclusion perpetua depending upon the quantity."

Under Section 4 of R.A. No. 7659, the penalty for selling,

dispensing, delivering, transporting or distributing marijuana in
excess of 750 grams or more shall be "reclusion perpetua to
death and a fine ranging from Five Hundred Thousand Pesos to
Ten Million Pesos."

We noticed that the penalty of reclusion perpetua was imposed by

R.A. No. 7659 as the maximum penalty when the quantity of the
marijuana involved in the offense is less than 750 grams and at
the same time as the minimum penalty when the quantity of
marijuana involved is 750 grams or more. It is the duty of the
Court to harmonize conflicting provisions to give effect to the
whole law (Rufino Lopez and Sons v. Court of Appeals, 100 Phil.
850 [1957]). Furthermore, one of this Court's primordial
responsibilities is to give a statute its sensible construction. This
is to effectuate the intention of the legislature so as to avoid an
absurd conclusion with regard to its meaning (Lamb v. Phipps, 22
Phil. 456 [1912]). Therefore, when the quantity involved is less
than 750 grams, Section 17 of R.A. No. 7659 should be read
correctly to provide a penalty ranging from prision correccional to
reclusion temporal only.

The provision of Article 22 of the Revised Penal Code, which

states that "penal laws shall have a retroactive effect insofar as
they favor the person guilty of a felony," finds meaning in this
case. Appellant is entitled to benefit from the reduction of the
penalty introduced by R.A. No. 7659.

In order to determine the penalty to be imposed on appellant, we

first divide the amount of 750 grams into three to correspond to
the three applicable penalties, namely, prision correccional,
prision mayor and reclusion temporal.

If the marijuana involved is from 500 to 749 grams, the penalty

to be imposed is reclusion temporal. If the marijuana involved is
from 250 to 499 grams, the penalty to be imposed is prision
mayor and if the weight of the marijuana involved is below 250
grams, the penalty to be imposed is prision correccional.

Since there is no evidence as to the weight of the two foils and

one plastic bag of flowering tops of marijuana seized from
appellant, we resolve the doubt in favor of appellant and conclude
that the quantity involved was: (i) below 750 grams; and (ii) not
less than 250 but not more than 499 grams.

Hence, the maximum penalty that can be imposed on appellant is

prision mayor. Applying the Indeterminate Sentence Law to
appellant, who was convicted under a special law (People vs.
Macantando, 109 SCRA 35 [1981]), and as such law was
interpreted in People v. Simon, G.R. No. 93028, July 29, 1994,
the minimum penalty that can be imposed on appellant should be
within the range of prision correccional.

WHEREFORE, the Decision appealed from is AFFIRMED with the

modification that appellant shall suffer an indeterminate penalty
of FOUR (4) years and TWO (2) days of prision correccional, as
minimum, to EIGHT (8) years and ONE (1) day of prision mayor,
as maximum.

SO ORDERED.

Davide, Jr., Bellosillo and Kapunan, JJ., concur. Cruz, J., is on

leave.
FIRST DIVISION

G. R. No. 125865 - January 28, 2000 JEFFREY LIANG (HUEFENG),

Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development

Bank (ADB). Sometime in 1994, for allegedly uttering defamatory
words against fellow ADB worker Joyce Cabal, he was charged
before the Metropolitan Trial Court (MeTC) of Mandaluyong City
with two counts of grave oral defamation docketed as Criminal
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of
a warrant issued by the MeTC. After fixing petitioner's bail at
P2,400.00 per criminal charge, the MeTC released him to the
custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of
Foreign Affairs (DFA) stating that petitioner is covered by
immunity from legal process under Section 45 of the Agreement
between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country.
Based on the said protocol communication that petitioner is
immune from suit, the MeTC judge without notice to the
prosecution dismissed the two criminal cases. The latter filed a
motion for reconsideration which was opposed by the DFA. When
its motion was denied, the prosecution filed a petition for
certiorari and mandamus with the Regional Trial Court (RTC) of
Pasig City which set aside the MeTC rulings and ordered the latter
court to enforce the warrant of arrest it earlier issued. After the
motion for reconsideration was denied, petitioner elevated the
case to this Court via a petition for review arguing that he is
covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were
filed in court.
The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any
immunity. The DFA's determination that a certain person is
covered by immunity is only preliminary which has no binding
effect in courts. In receiving ex-parte the DFA's advice and in
motu propio dismissing the two criminal cases without notice to
the prosecution, the latter's right to due process was violated. It
should be noted that due process is a right of the accused as
much as it is of the prosecution. The needed inquiry in what
capacity petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis that has
yet to be presented at the proper time.1 At any rate, it has been
ruled that the mere invocation of the immunity clause does not
ipso facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this
Article experts and consultants performing missions for the Bank
shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed

by them in their official capacity except when the Bank waives
the immunity.

the immunity mentioned therein is not absolute, but subject to

the exception that the acts was done in "official capacity." It is
therefore necessary to determine if petitioner's case falls within
the ambit of Section 45(a). Thus, the prosecution should have
been given the chance to rebut the DFA protocol and it must be
accorded the opportunity to present its controverting evidence,
should it so desire.

Third, slandering a person could not possibly be covered by the

immunity agreement because our laws do not allow the
commission of a crime, such as defamation, in the name of
official duty.3 The imputation of theft is ultra vires and cannot be
part of official functions. It is well-settled principle of law that a
public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with
malice or in bad faith or beyond the scope of his authority or
jurisdiction.4 It appears that even the government's chief legal
counsel, the Solicitor General, does not support the stand taken
by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a

diplomatic agent, assuming petitioner is such, enjoys immunity
from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside
his official functions.5 As already

mentioned above, the commission of a crime is not part of official

duty.

Finally, on the contention that there was no preliminary

investigation conducted, suffice it to say that preliminary
investigation is not a matter of right in cases cognizable by the
MeTC such as the one at bar.6 Being purely a statutory right,
preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that
no preliminary investigation is required in cases falling within the
jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it
impair the validity of the information or otherwise render it
defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ.,

concur.

Endnotes:

1 See United States v. Guinto, 182 SCRA 644 [1990].

2 Chavez v. Sandiganbayan, 193 SCRA 282 [1991].

3 K.H. Wylie v. Rarang, 209 SCRA 357, 368 [1992].

4 Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans

Affairs Office, 174 SCRA 214 [1989]; Dumlao v. CA, 114 SCRA
247 [1982].

5 Sec. 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].
6 See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].

7 People v. Abejuela, 38 SCRA 324 [1971].

8 Sec. 1, Rule 112, Rules of Criminal Procedure.

9 People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1

SCRA 478 [1961].